The Cincinnati Enquirer v. Ohio Dep't of Health
| Decision Date | 02 June 2021 |
| Docket Number | 2020-00500PQ |
| Parties | THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC. Requester v. OHIO DEPARTMENT OF HEALTH Respondent |
| Court | Ohio Court of Claims |
REPORT AND RECOMMENDATION
{¶1} The Ohio Public Records Act (PRA) requires that upon request copies of public records be made available to any person at cost and within a reasonable period of time. R.C 149.43(B)(1). The people's entitlement to access to government records serves a critical function in our democratic system, ensuring government accountability integrity, equity, and transparency. Welsh-Huggins v Jefferson Cty. Prosecutor's Office, Slip Opinion No 2020-Ohio-5371, ¶ 10. Accord Eye on Ohio v. Ohio Dept. of Health, Ct. of Cl. No. 2020-00279PQ, 2020-Ohio-5278, ¶ 2-3. To that end, the Public Records Act must be construed liberally in favor of broad access, with any doubt 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. This action is filed under R.C. 2743.75, which provides an expeditious and economical procedure to enforce the PRA in the Court of Claims.
{¶2} On August 6, 2020, Jacalyn Borchardt, a reporter for the Cincinnati Enquirer, made a public records request to Press Secretary Melanie Amato of the Ohio Department of Health (ODH) for, inter alia: "Number of Ohio COVID-19 deaths broken down by long-term care facility, Complaints received about Mercy Franciscan at West Park from March 1 to June 30," and "COVID-19-related complaints about long-term care facilities received by ODH from March 1 to June 30." (Complaint at 3.) Borchardt received no response in the following week.
{¶3} On August 14, 2020, the Enquirer filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records. The case was referred to mediation, during which the parties resolved three other requests for statistical records. On November 25, 2020, ODH filed a motion to dismiss the remaining claims (Response). On December 3, 2020, the Enquirer filed a memorandum in opposition (Reply). On December 18, 2020, ODH filed a response to the reply (Sur-reply). On December 28, 2020, the Enquirer filed a supplemental affidavit. On March 4, 2021, ODH filed a notice of supplemental authority and a response to the court order of February 16, 2021. On April 28, 2021, the U.S. Department of Justice filed a Statement of Interest on behalf of the U.S. Department of Health and Human Services. On April 29, 2021, ODH and the Enquirer each filed responses to the court order of April 14, 2021 for additional information and documents.
{¶4} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that 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.
{¶5} ODH argues the complaint fails to state a claim because a record of the "number of Ohio COVID-19 deaths broken down by long-term care facility" does not exist. (Response at 6-7.) On review, non-existence of the requested death dataset is not established on the face of the complaint and attachments. Moreover, as the matter is now fully briefed this argument is subsumed in ODH's defense on the merits. It is therefore recommended that that the motion to dismiss be denied.
{¶6} A requester must 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.). At the outset, the requester bears the burden to show that it seeks identifiable public records pursuant to R.C. 149.43(B)(1). Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, Slip Opinion No. 2020-Ohio-5371, ¶ 33.
{¶7} Production of records during mediation rendered the following requests, numbered in their order of appearance in the Enquirer's August 6, 2020 request, moot:
(Oct. 30, 2020 Entry; Response at 5.) The following requests remain in dispute:
{¶8} A public office has no duty to provide records that do not already exist or that it does not possess. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio- 1216, 128 N.E.3d 179, ¶ 8-10. A requester cannot compel the office to create new records by searching for and compiling information from separate databases. Speros v. Secy. of State, Ct. of Cl. No. 2017-00389PQ, 2017-Ohio-8453, ¶ 12-19. Where a respondent denies that a record exists, the requester must show by clear and convincing evidence that the record does exist in the possession of the office. Cordell at ¶ 8.
{¶9} ODH denies that it can produce the "number of Ohio COVID-19 deaths broken down by long-term care facility." (Response at 3-4, 6-7.) ODH provides testimony that to do so it would be required to assemble data from multiple separate databases - a task its current data management system is not programmed to perform. (Response, Exh. D - Tarter Aff. I at ¶ 17-18, 30-38.) Tarter's affidavit is some evidence supporting the non-existence of the requested record.
{¶10} The Enquirer argues that ODH should be able to compile COVID-19 deaths by long-term care facility in order to perform its duties in the pandemic. (Reply at 5.) However, a requester is only entitled to access records that actually exist, not records it believes the public office should have created. The evidence shows that ODH possessed the requested data, but not in a data management system that can produce the requested dataset through existing programming. In WCPO-TV v. Ohio Dept. of Health, Ct. of Cl. No. 2020-00513PQ, 2021-Ohio-1151, the special master reviewed a fact pattern that was functionally identical, and evidence that was fully identical, regarding the numbers of COVID-19 deaths of residents in long-term care facilities. The special master incorporates and refers the court to the expanded consideration of ODH databases and relevant law analyzed in that case. Id. at ¶ 9-21.
{¶11} The Enquirer argues that ODH alternatively could have satisfied this request by identifying the "submitted forms" from which the data in the database is derived and providing it with copies of the forms. (Reply at 5.) However, the request on which the complaint is based did not seek the forms, and the court may only consider the claim for statistical output that is before it, i.e., "Number of Ohio COVID-19 deaths broken down by long-term care facility." The Enquirer may of course make new requests based on record maintenance and access information acquired in this action.
{¶12} The special master finds the Enquirer has not proven by clear and convincing evidence that a record responsive to its first request existed as available output under existing programming in the ODH data management system at the time of the request. Given this finding, it is unnecessary for the court to address ODH's assertion that some information in such a compilation would be excepted from disclosure by R.C. 3701.17.
{¶13} ODH does not dispute that it received and keeps "Complaints received about Mercy Franciscan at West Park from March 1 to June 30" and "COVID 19 related complaints about long-term care facilities received by ODH from March 1 to June 30." Unless a public records exception applies, these records are thus subject to disclosure under R.C. 149.43. State ex rel. Perrea v. Cincinnati Pub. Sch., 123 Ohio St.3d 410, 2009-Ohio-4762, 916 N.E.2d 1049, ¶ 16. ODH asserts that the complaints may be withheld by application of one federal and two state exceptions. (Response at 9-13, 15.)
{¶14} As a threshold matter, ODH asserts that "the Complaint seeks ODH to comply with FOIA, which does not apply here." (Response at 8.) However, the complaint and the request on which it is based make no reference to FOIA. The fact that ODH independently forwarded a copy of the request to the Centers for Medicare & Medicaid Services (CMS) (Response, Exh. E) does not disturb the fact that the Enquirer directed its request to ODH under the Ohio Public Records Act. Even had the Enquirer made separate requests to ODH and CMS, the same document can be a "public record" of multiple public offices and is independently subject to production from each. See Hodge v. Montgomery Cty. Prosecutor's Office, Ct. of Cl. No. 2019-01111PQ, 2020-Ohio-4520, ¶ 10, fn. 1 and cases cited therein. FOIA is not implicated in this action.
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