Cuyahoga Cty. Bd. of Health v. Lipson O'Shea Legal Group (Slip Opinion) ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cuyahoga Cty. Bd. of Heath v. Lipson O’Shea Legal Group, Slip Opinion No. 2016-Ohio-556.]
NOTICE
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-556
CUYAHOGA COUNTY BOARD OF HEALTH, APPELLANT, v. LIPSON O’SHEA
LEGAL GROUP, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cuyahoga Cty. Bd. of Heath v. Lipson O’Shea Legal Group,
Slip Opinion No. 2016-Ohio-556.]
Public records―R.C. 149.43―County board of health―Request for board’s
records of county residences where minor child was found to have elevated
lead levels in blood―Protected health information―R.C.
3701.17―Address of afflicted child is protected health information exempt
from release―Cause remanded to trial court for review of requested
records to determine what information can be released after all protected
health information is redacted.
(No. 2014-0223—Submitted May 19, 2015—Decided February 18, 2016.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 99832,
2013-Ohio-5736.
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SUPREME COURT OF OHIO
PFEIFER, J.
BACKGROUND
{¶ 1} In 2012, Michael J. O’Shea, a principal of appellee, Lipson O’Shea
Legal Group, made the following request for records from appellant, Cuyahoga
County Board of Health (“Cuyahoga County BOH”):
Pursuant to RC 149.43 (Ohio Public Records Act), I hereby request
documentation or information of all homes in 2008, 2009, 2010 and
2011 in Cuyahoga County where a minor child was found to have
elevated blood lead levels in excess of 10 mg/DI [sic, mg/d1].
{¶ 2} After identifying the relevant responsive information, which it claims
comprises approximately 5,000 pages, Cuyahoga County BOH determined that it
was prohibited from providing the information to Lipson O’Shea. To confirm its
conclusion, Cuyahoga County BOH sought a declaratory judgment in the court of
common pleas with respect to “its status, duty, obligations and/or requirements to
maintain the confidentiality of the records sought” by Lipson O’Shea. It submitted
to the court 12 sample files as representative examples of the requested records for
the court’s in camera review.
{¶ 3} Cuyahoga County BOH moved for summary judgment. Upon review
of the records, the trial court concluded that release of the records is prohibited by
R.C. 3701.17, which exempts from disclosure certain health information if the
individual is identified or if the information could be used to reveal the individual’s
identity. The court found that the requested records, even if redacted, could be used
to reveal the identities of the individual children. The trial court ruled that release
of the records was thus prohibited by state law within the meaning of R.C.
149.43(A)(1)(v) by virtue of the application of R.C. 3701.17. Therefore, the court
granted summary judgment to Cuyahoga County BOH.
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January Term, 2016
{¶ 4} The court of appeals reversed, concluding that the trial court’s
“blanket exemption” was inappropriate because many of the records, even those
that contain “protected health information,” contain other information that is not
excepted from disclosure. The court declared that instead of withholding all
records, Cuyahoga County BOH must examine each document, redact any
protected health information, and release any remaining unprotected information
not otherwise excepted. 2013-Ohio-5736, 6 N.E.3d 631, ¶ 31. Accordingly, the
court of appeals determined that the trial court had erred in granting summary
judgment and remanded the cause for further proceedings.
{¶ 5} Cuyahoga County BOH appealed to this court. We accepted
jurisdiction on the following proposition of law: “Information in the Custody of a
Board of Health or the Ohio Department of Health that Either Identifies an
Individual or Could Be Used to Ascertain that Individual’s Identity is Exempt from
Disclosure under the Public Records Act Absent the Individual’s Consent.” 139
Ohio St. 3d 1474, 2014-Ohio-3012, 11 N.E.3d 1195.
ANALYSIS
{¶ 6} The Ohio Public Records Act, R.C. 149.43, which governs the
availability of public records for inspection and copying, states that upon request,
“all public records responsive to the request shall be promptly prepared and made
available for inspection to any person at all reasonable times during regular
business hours.” R.C. 149.43(B)(1). We have stated that the fundamental policy
of R.C. 149.43 “is to promote open government, not restrict it.” State ex rel. Besser
v. Ohio State Univ., 89 Ohio St. 3d 396, 398, 732 N.E.2d 373 (2000), citing State ex
rel. The Miami Student v. Miami Univ., 79 Ohio St. 3d 168, 171, 680 NE.2d 956
(1997). Although this policy inclines us to liberally interpret public-records
requests in favor of disclosure, it is not automatically dispositive. Release may be
prohibited by an exception or by another statute providing protection to the subject
of the information sought.
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SUPREME COURT OF OHIO
{¶ 7} R.C. 3701.17(B) prohibits the release of “[p]rotected health
information reported to or obtained by” public-health authorities without the
written consent of the individual who is the subject of the record, unless certain
conditions are met. “Protected health information” is information that “describes
an individual’s past, present, or future physical or mental status or condition, receipt
of treatment or care, or purchase of health products” when either of the following
two conditions applies: (1) the information “reveals the identity of the individual
who is the subject of the information” or (2) the information “could be used to
reveal the identity of the individual who is the subject of the information.” R.C.
3701.17(A)(2)(a) and (b). Thus, to be protected, the information must first of all
describe an individual’s “physical or mental status or condition, receipt of treatment
or care, or purchase of health products.” The proposition of law before us, as
framed by Cuyahoga County BOH, addresses only the two subordinate conditions
without mentioning the predominant requirement, that the information must be
“protected health information.” The argument in support of the proposition,
however, addresses this crucial point, and so we proceed to the merits of that larger
question.
{¶ 8} In another context (related not to R.C. 3701.17 but to the federal
Health Insurance Portability and Accountability Act1), we concluded that lead-
contamination notices issued by a city health department did not reveal “health
information” merely because they referred to “a child”―unnamed―whose blood
test indicated an elevated lead level. State ex rel. Cincinnati Enquirer v. Daniels,
108 Ohio St. 3d 518, 2006-Ohio-1215, 844 N.E.2d 1181. In that situation, the
notices were sent to property owners to apprise them of “violations relating to lead
1
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub.L. No. 104-191,
110 Stat. 1936, codified as amended in various sections of Titles 18, 26, 29, and 42 of the United
States Code.
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January Term, 2016
hazards” and did not contain any information about “medical examination,
assessment, diagnosis, or treatment of any medical condition” of any individual.
Id. at ¶ 16. The notices did contain what we termed a “mere nondescript reference
to ‘a’ child with ‘an’ elevated lead level,” which we concluded was not protected
health information. Id.
{¶ 9} Despite some similarity to the Cincinnati Enquirer case, we reach a
different conclusion because the public-records request in this case is inextricably
linked to “protected health information.”
{¶ 10} The request seeks “documentation or information of all homes * * *
in Cuyahoga County where a minor child was found to have elevated blood lead
levels in excess of 10 [mg/dl].” By linking the request to specific blood lead levels,
Lipson O’Shea has made it impossible for Cuyahoga County BOH to comply
without disclosing information that undeniably describes an individual’s “physical
or mental status or condition” within the meaning of R.C. 3701.17(A)(2).
Therefore, the information requested is protected health information if it identifies
or can be used to identify the individual who is the subject of the protected health
information. It is undeniable that the address of a home where a child has an
elevated blood lead level can be used to identify the afflicted child. Even if it were
possible to comply with the request by redacting protected health information, the
release of merely the address of a house in response to the public-records request
at issue means that a child at the house had “elevated blood lead levels in excess of
10 [mg/dl],” which is protected health information. Still, it is possible that some of
the information in the records prepared by the Cuyahoga County BOH is not
protected health information. Neither this court, the court of appeals, nor the trial
court has reviewed all of the records, so we cannot categorically state that all of the
information responsive to the request is protected.
{¶ 11} The real problem in this case is the public-records request itself. It
seeks records specifically related to a person’s physical status or condition. Lipson
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SUPREME COURT OF OHIO
O’Shea states in its brief that there are documents responsive to its request that do
not contain protected health information, specifically, “lead hazard violation
notices, risk-assessment reports, Health Dept. correspondence with landlords, and
lead abatement certifications.” If that is the case, Lipson O’Shea should have
requested access to those documents, not to documents related to homes “where a
minor child was found to have elevated blood lead levels in excess of 10 [mg/dl].”
{¶ 12} We affirm the judgment of the court of appeals and remand to the
trial court to review first the sample files and, if necessary, all the responsive
information in the possession of the Cuyahoga County BOH to determine what
information, if any, can be released after all protected health information is
redacted.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
_________________
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brian R.
Gutkoski, Assistant Prosecuting Attorney, for appellant.
Lipson O’Shea Legal Group, Michael J. O’Shea, and Ronald A. Annotico,
for appellee.
_________________
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