WCPO-TV v. Ohio Dep't of Health

• Decision Date: 02 June 2022
• Docket Number: 21AP-277
• Citation: 2022 Ohio 1864
• Parties: WCPO-TV, A Division of the E.W. Scripps Company, Plaintiff-Appellee, v. Ohio Department of Health, Defendant-Appellant.
• Court: Ohio Court of Appeals

2022-Ohio-1864

WCPO-TV, A Division of the E.W. Scripps Company, Plaintiff-Appellee,
v.
Ohio Department of Health, Defendant-Appellant.

No. 21AP-277

Court of Appeals of Ohio, Tenth District

June 2, 2022

APPEAL from the Court of Claims of Ohio (Ct. of Cl. No. 2020-00513PQ)

On brief:

Graydon Head & Ritchey LLP, John C. Greiner, Darren W. Ford, and Kellie Ann Kulka, for appellee.

Isaac Wiles & Burkholder, LLC, Mark Landes, Dale D. Cook, and Benjamin D. Humphrey, for appellant.

Argued:

Darren W. Ford

Dale D. Cook

DECISION

KLATT, J.

{¶ 1} Defendant-appellant, the Ohio Department of Health ("ODH"), appeals a judgment of the Court of Claims of Ohio that found ODH violated the Ohio Public Records Act by failing to properly respond to records requests made by plaintiff-appellee, WCPO-TV, a division of the E.W. Scripps Company. For the following reasons, we affirm that judgment in part and reverse it in part.

{¶ 2} On June 15, 2020, Paula Murphy, a WCPO reporter, requested the following information from ODH:

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1) The number of COVID-19 deaths in 2020 from Residents at Burlington House and Alzheimer's Care Center on Springdale Road in Hamilton County. The Ohio Department of Health website lists 78 residents at this facility have tested positive for COVID-19. Please provide the date of death and any other information that can be publicly released about those deaths (age, race, sex, etc.)

2) The total number of COVID-19 deaths in 2020 from residents of any nursing home or long-term care facility in Hamilton Butler, Warren and Clermont counties. I would please request the name of the facility, and the number of deaths of residents from COVID-19.

(Compl. at Attachment.)

{¶ 3} On June 16, 2020, ODH responded that:

The Ohio Department of Health is not releasing deaths at long term care facilities by facility for COVID-19 or any other cause of death. We are only reporting it at the county level. A person could be too identifiable and that information is "protected health information," as defined in section 3701.17(A)(2) of the Ohio Revised Code ("R.C.").

(Compl. at 2.)

{¶ 4} On August 20, 2020, WCPO filed a public-records-access complaint against ODH in the Court of Claims pursuant to R.C. 2743.75. After an unsuccessful mediation, ODH filed a motion to dismiss. In relevant part, ODH argued that it could not provide any records to WCPO because WCPO sought records containing "protected health information," which R.C. 3701.17(B) prohibited ODH from releasing. WCPO opposed ODH's motion to dismiss. According to WCPO, it was not seeking "protected health information" because it did not ask for ODH to release any information that could be used to identify the individuals who had died of COVID-19.

{¶ 5} In order to evaluate ODH's claimed exception to disclosure, the special master asked ODH to provide additional information pursuant to R.C. 2743.75(E)(3)(c). In relevant part, the special master requested that ODH "explain in detail whether and how providing the month of death, day of death, age at death, race, or sex, either alone or in combination, of a resident whose death resulted from COVID-19 would necessarily disclose

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the identity of the former resident" of Burlington House Rehab and Alzheimer's Care Center ("Burlington"). (Feb. 16, 2021 Order at ¶ 7.)

{¶ 6} ODH responded:

With information that is generally available online, it is possible to identify specific individuals with limited information. A good explanation of the potential to identify individuals and recommendations on how to manage this potential is the "Guidance on the release of information concerning deaths, epidemics, or emerging diseases," published by the Association of Health Care Journalists * * *. In the article, the authors state, "[often, releasing gender, age, and location is enough for people in the community or the media to identify the person."

For example, knowing that a 97-year-old female died in January 2021 at Sunny View Retirement Facility, an ODH staffer identified Margaret Tarter using a basic Google search.

(Emphasis sic.) (ODH's Response to the Special Master's Order Issued Feb. 16, 2021 at ¶ 7.)

{¶ 7} On April 1, 2021, the special master issued a report and recommendation to the Court of Claims. First, the special master recommended that the Court of Claims deny the motion to dismiss. The special master then considered whether WCPO had established a public records violation by clear and convincing evidence.

{¶ 8} Although ODH did not dispute that it maintained the COVID-19 death data sought in WCPO's requests, it contended that no ODH data system was capable of producing the datasets WCPO requested without additional programming. After reviewing the ODH data systems containing COVID-19 data concerning residents of long-term care facilities, the special master concluded that ODH could produce the records requested in WCPO's first request from the data ODH maintained in the Electronic Death Registration System ("EDRS"). Thus, the special master determined, WCPO had shown by clear and convincing evidence that its first request was a proper request for reasonably identified, existing ODH records. However, WCPO had not met that burden with regard to its second request. Unlike the first request, the second request did not provide ODH with specific facility names or addresses, thus depriving ODH of an essential sorting term necessary for producing the requested records from EDRS.

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{¶ 9} With regard to the first request, the special master then considered whether the records requested were excepted from public disclosure as "protected health records" pursuant to R.C. 3701.17. The special master concluded that ODH had not shown the clear and convincing proof required to apply R.C. 3701.17 as an exception to disclosure of the requested records.

{¶ 10} With regard to the second request, the special master found that it was an overly broad request. Additionally, the special master found that ODH neither provided WCPO with an opportunity to revise the second request nor made any effort to explain the manner in which ODH regularly maintained and accessed its COVID-19 death records.

{¶ 11} Based upon his legal conclusions and factual findings, the special master recommended that the Court of Claims order ODH to provide WCPO with a copy of the records described in the first request. The special master also recommended that the Court of Claims find that ODH violated R.C. 149.43(B)(2) by failing to provide WCPO with relevant information to revise the second request.

{¶ 12} ODH objected to the special master's report and recommendation. In a decision dated April 29, 2021, the Court of Claims overruled ODH's objections and adopted the special master's report and recommendation. The Court of Claims entered judgment on its decision the same day.

{¶ 13} ODH now appeals the Court of Claims' April 29, 2021 judgment, and it assigns the following errors:

1. The trial court erred in ordering the production of protected health information that is not a public record.

2. The trial court erred in holding that the ODH violated R.C. 149.43(B)(2) by failing to inform the requester of the manner in which the protected health information was maintained.

{¶ 14} By its first assignment of error, ODH argues that the Court of Claims erred in ordering it to produce...