Whitehead v. Ohio Dep't of Rehab. & Corr.

Decision Date08 September 2020
Docket NumberCase No. 2020-00116PQ
Citation2020 Ohio 7056
PartiesDENNIS WHITEHEAD Requester v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION - BUREAU OF RECORD MANAGEMENT Respondent
CourtOhio Court of Claims
Special Master Jeff Clark
REPORT AND RECOMMENDATION

{¶1} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the Court of Claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the Public Records Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20.

{¶2} On January 13, 2020, Dennis Whitehead made a request to the Ohio Department of Rehabilitation and Correction (DRC) for "available public records from the incarceration of PosteaI LASKEY from 1967 to his death in 2007."1 (Complaint at 6.) The Correctional Records Office Supervisor created a Certificate of Incarceration and sent it to Whitehead with a brief summary of "information from his old microfiche," but provided no records from Laskey's incarceration files. (Id. at 3-4.)

{¶3} On February 18, 2020, Whitehead filed a complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). On May 1, 2020, the court was notified that mediation had failed to successfully resolve alldisputed issues between the parties. On July 30, 2020, DRC filed a motion to dismiss requester's complaint or in the alternative motion for summary judgment (Response). On August 20, 2020, DRC filed copies of the withheld records, under seal, and the affidavit of DRC staff counsel for public information. On August 21, 2020, DRC filed a document labeled "Privilege Log."

Motion to Dismiss

{¶4} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).

{¶5} DRC moves to dismiss the complaint on the grounds that it has provided Whitehead with all requested public records, except medical records that are exempt from release. On review, I find that the facts required to support the allegation of mootness and application of the medical records exemption2 are not conclusively shown on the face of the complaint and attachments thereto. Moreover, as the matter is now fully briefed I find the arguments to dismiss are subsumed in the arguments on the merits of the case. I therefore recommend that that the motion to dismiss be denied, and the matter be determined on the merits.

Suggestion of Mootness

{¶6} In an action to enforce R.C. 149.43(B), a public office may produce the requested records prior to the court's decision and thereby render the claim for production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878,950 N.E.2d 952, ¶ 18-22. DRC provided Whitehead with some responsive information and one newly-created record prior to the filing of the complaint (Complaint at 3-4). During litigation, DRC produced 18 pages of institutional records. (Response at 2-3, Exh. A.) DRC asserts that Whitehead's claims are now moot, except as to his request for production of medical records. (Id. at 4.) Whitehead does not admit that all non-medical records have been provided to him, but states that his "outstanding issue" is for access to "medical and mental health records from Laskey's time of imprisonment." (Id., Exh. B.)

{¶7} I find that Whitehead's claims for production of records have been rendered moot as to the records actually disclosed to date. (Id., Exh. A; Complaint at 3-4.)

Burden of Proof

{¶8} A requester must establish public records violations by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). DRC is a public office and the withheld documents are "records" kept by DRC, thus meeting the definition of "public record."3 The DRC records filed under seal are responsive to Whitehead's request. (Pierce Aff. at ¶ 3-7.) With the propriety of the request established, the burden shifts to DRC to show that any withheld records were exempt from production under the Act.

{¶9} The Supreme Court sets the following standard to determine application of an alleged exception to the Public Records Act:

We have consistently held that the Public Records Act "'is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.'" Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 7, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 1996-Ohio-214, 662 N.E.2d 334 (1996). To that end, the party withholding records on the basis of an alleged exception to disclosure bears the burden of showing that the records fall within the exception. State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10. And a "custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception." Id.

Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. Phrased another way, exceptions to the Act must be "strictly construed against the public records custodian." State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. Any doubt should be resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).

Exemption Asserted - Medical Records4

{¶10} DRC asserts that all withheld documents are medical records exempt from public records release under R.C. 149.43(A)(1)(a) and (A)(3), and R.C. 5120.21(C)(1). (Pierce Aff. at ¶ 6-8.) Whitehead was not able to examine the records filed under seal, and DRC's "privilege log" and affidavit did not provide him with any description of individual records that would have enabled him to contest whether they met the definition of medical records. Whitehead does assert that even documents shown to be medical records should be released, since any privacy interest of the deceased inmate/patient has expired. (Response, Exh. B.)

{¶11} R.C. 149.43(A)(1)(a) provides an exemption from public records disclosure for "medical records," defined for purposes of the Act as

any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.

R.C. 149.43(A)(3). The definition of "medical records" has three requirements:

1. The document must pertain to the medical history, diagnosis, prognosis, or medical condition of a patient, and,
2. The document must have been generated in the process of medical treatment, and,
3. The document must be maintained in the process of medical treatment.

The three requirements are conjunctive, so that the absence of any one factor disqualifies a record from the definition. State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, 306, ¶ 42; State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997); State v. Rohrer, 2015-Ohio-5333, 54 N.E.3d 654, ¶ 54-57 (4th Dist.); Shaffer v. Budish, Ct. of Cl. No. 2017-00690PQ, 2018-Ohio-1539, ¶ 30-35.

{¶12} Medical records of DRC inmates are subject to an additional but functionally identical medical records exemption, defined in R.C. 5120.21(C)(1):

As used in this division, "medical record" means any document or combination of documents that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.

This statute lacks certain language in R.C. 149.43(A)(2). However, DRC promulgated an administrative code amplifying R.C. 5120.21(C) that clarifies the exemption is subject to the same "exception to the exemption" in R.C. 149.43(A)(1)(a) and (A)(3):

(2) Medical records that pertain to the medical history, diagnosis, prognosis, or medical condition of an inmate and that is generated and maintained in the process of medical treatment. "Medical records" does not include any document relating to birth, deaths, and the fact of admission to or discharge from a hospital. See divisions (A)(1)(a) and (A)(3) of section 149.43 of the Revised Code.

(Emphasis added.) O.A.C. 5120-9-49(B)(2).

{¶13} Whitehead contends that any medical records exemption expired with the death of the inmate to whom the records pertain, citing provisions of the federal Freedom of Information Act (FOIA). However, an unconditional statutory public records exemption does not cease to apply when the subject of the records dies. State ex rel. CNN, Inc. v. Bellbrook-Sugarcreek Local Sch., 2019-Ohio-4187, 134 N.E.3d 268 (2d Dist., Oct. 2, 2019), direct appeal pending Ohio Supreme Court Case No. 2019-1433. Also, FOIA is not applicable to state agencies and officers. State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 35.

Evidence Before the Court

{¶14} DRC's first opportunity to provide proof supporting the claimed exemptions was in its response to Whitehead's complaint. R.C. 2743.75(E)(2). However, DRC's response offered no testimony, privilege log, or document descriptions to support the status of the withheld documents as medical records. The special master provided DRC a...

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