Standifer v. Ohio Dep't of Health

• Decision Date: 10 February 2023
• Docket Number: 2022-00217PQ
• Citation: 2023 Ohio 622
• Parties: LAUREN (CID) STANDIFER Requester v. OHIO DEPARTMENT OF HEALTH Respondent
• Court: Ohio Court of Claims

2023-Ohio-622

LAUREN (CID) STANDIFER Requester v. OHIO DEPARTMENT OF HEALTH Respondent

No. 2022-00217PQ

Court of Claims of Ohio

February 10, 2023

Sent to S.C. Reporter 3/2/23

REPORT AND RECOMMENDATION

JEFF CLARK SPECIAL MASTER

{¶1} This case arises from a journalist's public records request for the Ohio death certificate database, composed of data received from local officials and maintained by the Ohio Department of Health (ODH). Requester Lauren Standifer, a former reporter for The Plain Dealer and now a freelance data journalist, intends to document the demographics, timing and location of deaths during the Covid pandemic. He states that

death certificate information, including location of death manner of death, race, ethnicity, marital status, occupation and industry is a public record. Moreover, there is a compelling public interest in the release of this data as the state grapples with widespread fatalities caused directly and indirectly by the coronavirus pandemic. As demonstrated by the spike in deaths from the omicron coronavirus variant in winter 2021-2022, high numbers of additional casualties continue to be possible. Data on which demographics and occupations were most likely to die due to the pandemic in 2020 is of critical importance to future policies regarding Ohio's pandemic response.

(Complaint at 1.)

{¶2} For many years ODH has released all death certificate data to all requesters, including to news media reporting on Ohio death and disease trends. However, ODH recently "reassessed" its interpretation of R.C 3701.17(B)^[1] and argued successfully to the Tenth District Court of Appeals that releasing a cause of death linked to a decedent's identity is prohibited by that statute. ODH now refuses to produce any death data download that includes causes of death. ODH asserts that even when names and other personal identifiers are redacted, the remaining data might conceivably link a cause of death to a decedent by "triangulation."

The Public Records Act

{¶3} The purpose of the Public Records Act "is to expose government activity to public scrutiny, which is absolutely necessary to the proper working of a democracy." State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350 355, 673 N.E.2d 1360 (1997). "Public records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance." Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 16. This portal extends to compiled information on which government decisions are based, such as disease incidence records used to recognize and respond to the Covid-19 pandemic, and not just general summaries or records an office selectively shares.

To hold otherwise would be to ignore that he people's right to know includes 'not merely the right to know a governmental body's final decision on a matter, but the ways by which those decisions were reached.' See State ex rel. Gannett Satellite Information Network v. Shirey (1997), 78 Ohio St.3d 400, 404, 1997 Ohio 206, 678 N.E.2d 557, citing White, 76 Ohio St.3d at 419, 667 N.E.2d 1223.

Id. at ¶ 26. The Public Records Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Rogers v. Dept. of Rehab. & Corr, 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6.

The broad language used in R.C. 149.43 manifests the General Assembly's intent to jealously protect the right of the people to access public records. We are acutely aware of the importance of the right provided by the act and the vulnerability of that right when the records are in the hands of public officials who are reluctant to release them.

Rhodes v. New Phila., 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 21.

Public Records and Ohio's News Media

{¶4} Especially when records are in the hands of public officials who are reluctant to release them, news media work on behalf of the public to gather and report the factual data underlying government operations:

"(I)n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations."

Kallstrom v. City of Columbus, 165 F.Supp.2d 686, 697 (S.D.Ohio 2001), quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). "Thus, the Supreme Court has concluded, 'an untrammeled press [is] a vital source of public information', and an informed public the essence of working democracy." (Citations omitted.) Id. at 698. Because news media seek access to public records as a public watchdog, "the health and safety of this democracy depend on a press that can function without additional burdens being imposed based on its ability to publish information concerning government activities." Kallstrom at 703. The Public Records Act facilitates media access to critical government information such as ODH's death database.

The Request

{¶5} On April 20, 2021, Standifer asked ODH "when the Death Data File for 2020 might be available this year." (Complaint at 2.) In response, ODH advised that "We close the file at the end of July early August. It should then be available and complete by the end of August." (Id.) On August 24, 2021, Standifer reminded ODH it was time to send "the death certificate master file from 2020, including all data fields," noting parenthetically that "(ODH has provided the full, un-redacted file in the past to myself and The Plain Dealer when I worked there.)" (Id. at 2-4.) However, ODH produced only a partial file from which ODH had redacted causes of death, advising Standifer for the first time that the withheld data was exempt from disclosure under R.C. 3701.17 as protected health information. (Id. at 7-1219) Standifer wrote again, protesting that

in 2017 the Ohio Department of Health provided the Cleveland Plain Dealer with all the fields I have requested, including detailed information about cause of death, for all individuals who died in Ohio of opioid overdoses between 2010 and 2016 * * * Can you explain why the department did not consider these fields protected health information in 2017, but does now? Did the department violate health privacy laws in 2017?

Also, can you explain how occupation, race and marital status are considered protected health information?

(Id. at 6.) ODH declined to answer these questions. (Id. at 8-9.)

{¶6} On March 11, 2022, Standifer filed a complaint under R.C. 2743.75 alleging that ODH had denied him access to public records in violation of R.C. 149.43(B). Following unsuccessful mediation ODH filed a response to the complaint and a motion to dismiss (Response) on May 5, 2022. On October 6, 2022, Standifer filed a reply. On October 7, 2022, ODH filed a supplemental response. On February 1, 2023, ODH filed an affidavit in response to a December 21, 2022 court order.

Burden of Proof

{¶7} The requester in an action under R.C. 2743.75 bears an overall burden to establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist). The requester bears an initial burden of production "to plead and prove facts showing that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or records custodian did not make the record available." State ex rel. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33.

{¶8} ODH does not dispute that the Ohio death certificate database contains records that are public other than as exempted by a specific statute. However, ODH now refuses to make available any subset of the death certificate database that includes cause of death.

Motion to Dismiss

{¶9} To dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.

{¶10} ODH moves to dismiss the complaint on the grounds that 1) to satisfy Standifer's request the office would be required to reproduce the entire database or else search for data, compile the data and create a new record (Response at 8-10), and 2) Standifer is seeking protected health information (PHI) that is exempt from disclosure pursuant to R.C. 3701.17(B). (Id. at 10-12.) On review, Standifer's request is clearly limited to the year 2020 rather than "the entire database." Further, it is not plain on the face of the complaint that the database consists entirely of PHI, or that redacting PHI from the database download would constitute creation of a "new record."

{¶11} As the matter is now fully briefed these defenses are subsumed in the arguments to deny the claim on the merits. It is therefore recommended the motion to dismiss be denied.

ODH Ability to Produce All or Any Part of the Death Database Without Creating a New Record

{¶12} This court has...