Ludlow v. Ohio Dept. of Health , 2022 Ohio 3399 ( 2022 )

[Cite as Ludlow v. Ohio Dept. of Health, 2022-Ohio-3399.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Randy Ludlow, :
Requester-Appellee, :
No. 21AP-369
v. : (Ct. of Cl. No. 2021-00040PQ)
Ohio Department of Health, : (REGULAR CALENDAR)
Respondent-Appellant. :
D E C I S I O N
Rendered on September 27, 2022
On brief: Graydon Head & Ritchey LLP, John C. Greiner,
Darren W. Ford, and Kellie Ann Kulka, for appellee.
Argued: John C. Greiner.
On brief: Dave Yost, Attorney General, Rebecca L. Thomas,
and Theresa R. Dirisamer, for appellant.
Argued: Rebecca L. Thomas.
APPEAL from the Court of Claims of Ohio
KLATT, J.
{¶ 1} Respondent-appellant, the Ohio Department of Health ("ODH"), appeals a
judgment of the Court of Claims of Ohio ordering ODH to provide requester-appellee,
Randy Ludlow, with the public record he requested. For the following reasons, we reverse
that judgment.
{¶ 2} On April 20, 2020, Columbus Dispatch reporter Ludlow began seeking a
digital spreadsheet copy of the Electronic Death Reporting System, the data system ODH
uses to maintain death records. ODH initially denied Ludlow's requests. However, in
October 2020, ODH provided Ludlow with a digital spreadsheet that contained almost all
No. 21AP-369 2
of the information Ludlow requested. For deaths occurring during the selected period in
2020, ODH provided information that included the sex, age, race, birth date, and marital
status of each recorded decedent; the date, time, and place of death; and the manner and
cause of death. Although Ludlow wanted ODH to also disclose the names and addresses of
each decedent, ODH refused to do so on the grounds that such information constituted
"protected health information" under R.C. 3701.17.
{¶ 3} On January 26, 2021, Ludlow requested that ODH "provide a copy of the
Electronic Death Reporting System database – in digital spreadsheet form – of all death
certificates delivered to the department from March 1,, 2020 [sic] to Jan. 26, 2021 by all
local health departments in the state." (Compl. at attachment.) In conjunction with this
request, Ludlow acknowledged his receipt of the October 2020 digital spreadsheet, which
contained much of the information he sought in the January request. Ludlow explained
that he filed the January request to seek an update of the October spreadsheet and to again
ask for the names and addresses of each decedent. According to Ludlow, ODH once more
refused his request for names and addresses.
{¶ 4} On January 28, 2021, Ludlow filed a public-records-access complaint against
ODH in the Court of Claims pursuant to R.C. 2743.75. In accordance with R.C.
2743.75(D)(2), the trial court assigned a special master to examine the complaint. The
special master issued a report and recommendation to the trial court. In that report, the
special master considered whether the record Ludlow sought in the January request was
excepted from disclosure under R.C. 3701.17(B), which prohibits the release of "protected
health information" absent consent or the application of a statutory exception. The special
master concluded that the requested information did not fall squarely within the public-
records exception contained in R.C. 3701.17. Consequently, the special master
recommended that the trial court order ODH to comply with Ludlow's public-record
request.
{¶ 5} ODH objected to the special master's report and recommendation. In a
decision and entry dated July 1, 2021, the trial court overruled ODH's objections and
adopted the special master's report and recommendation.
{¶ 6} ODH now appeals from the July 1, 2021 decision and entry, and it assigns the
following errors:
No. 21AP-369 3
1. The lower court erred when it ordered the Department to
create a new spreadsheet from the death certificate database in
response to a public records request.
2. The lower court erred when it ordered the Department to
produce Protected Health Information, as defined by R.C.
3701.17.
{¶ 7} We will begin by addressing ODH's second assignment of error. In that
assignment of error, ODH argues that the trial court erred by ordering it to provide the
record Ludlow requested because it contains protected health information, which is
exempted from disclosure under the Public Records Act pursuant to R.C. 3701.17. We
agree.
{¶ 8} Ohio's Public Records Act requires a public office to promptly make copies of
public records available to any person upon request. R.C. 149.43(B)(1). Courts construe
the Public Records Act liberally in favor of broad access to public records and resolve any
doubt in favor of disclosure. State ex rel. CNN, Inc. v. Bellbrook-Sugarcreek Local Schools,
163 Ohio St.3d 314, 2020-Ohio-5149, ¶ 8. Conversely, courts construe exceptions to
disclosure strictly against the public office. Id. The public office carries the burden to
establish the applicably of an exemption to disclosure. Id. To meet its burden, the public
office must prove facts establishing that the requested records fall squarely within the
exemption. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337,
2020-Ohio-5371, ¶ 35.
{¶ 9} Whether a particular record is exempt from disclosure presents a question of
law, although the application of the statutory exemption will necessarily depend on the
application of facts to the record at issue. Id. at ¶ 37. When a party appeals a mixed
question of law and fact, an appellate court will review the legal question de novo but will
defer to the trial court's underlying factual findings, reviewing them only for clear error. Id.
{¶ 10} The dispute in this case centers on the applicability of R.C. 149.43(A)(1)(v),
which exempts from disclosure "[r]ecords the release of which is prohibited from state or
federal law." ODH argues that R.C. 3701.17(B), which prohibits the release of protected
health information, prevents it from disclosing to Ludlow a decedent's name or address in
conjunction with that decedent's cause of death.
No. 21AP-369 4
{¶ 11} Pursuant to R.C. 3701.17(B), "[p]rotected health information reported to or
obtained by the director of health, the department of health, or a board of health of a city
or general health district is confidential and shall not be released without the written
consent of the individual who is the subject of the information unless the information is
released pursuant to division (C) of this section" or a statutory exception applies. The
statute defines "protected health information" as:
information, in any form, including oral, written, electronic,
visual, pictorial, or physical that describes an individual's past,
present, or future physical or mental health status or condition,
receipt of treatment or care, or purchase of health products, if
either of the following applies:
(a) The information reveals the identity of the individual who
is the subject of the information.
(b) The information could be used to reveal the identity of the
individual who is the subject of the information, either by using
the information alone or with other information that is
available to predictable recipients of the information.
R.C. 3701.17(A)(2). "Information that is in a summary, statistical, or aggregate form and
that does not identify an individual is a public record under section 149.43 of the Revised
Code and, upon request, shall be released by the director." R.C. 3701.17(C).
{¶ 12} We recently considered the meaning and application of R.C. 3701.17 in
Walsh v. Ohio Dept. of Health, 10th Dist. No. 21AP-109, 2022-Ohio-272. Accord WCPO-
TV v. Ohio Dept. of Health, 10th Dist. No. 21AP-277, 2022-Ohio-1864, ¶ 19-22 (following
and applying Walsh); Miller v. Ohio Dept. of Health, 10th Dist. No. 21AP-267, 2022-Ohio-
357, ¶ 7 (same). In Walsh, a requester submitted a public-records request asking ODH to
provide, for all deaths in Ohio during the first eight months of 2020, all decedents' names,
addresses, dates of birth and death, partial social security numbers, genders, occupations,
and causes of death. ODH denied that request. The requester then filed a writ of
mandamus to compel ODH to comply with his public-records request. The trial court,
however, dismissed the writ, finding that ODH could not disclose the requested record
because it contained protected health information, and R.C. 3701.17(B) prohibited ODH
from releasing that information.
No. 21AP-369 5
{¶ 13} On appeal, the requester argued that the R.C. 3701.17 did not exempt the
requested record from disclosure. We determined that the applicability of R.C. 3701.17(B)
to the requested record depended on whether that record contained information describing
an " 'individual's past, present, or future physical or mental status or condition, receipt of
treatment or care, or purchase of health products.' " Walsh at ¶ 14, quoting R.C.
3701.17(A)(2).
{¶ 14} The requester first argued the record requested did not contain such
information because that record described deceased individuals' "physical or mental status
or condition, receipt of treatment or care, or purchase of health products." In other words,
according to the requester, R.C. 3701.17(B) protected only information describing living
individuals' "physical or mental status or condition, receipt of treatment or care, or
purchase of health products." We, however, rejected that interpretation of R.C. 3701.17
because it required the insertion of a word—i.e., "living"—that did not appear in the text.
Walsh at ¶ 14. Because R.C. 3701.17 uses the word "individual" without modification, the
protections of R.C. 3701.17(B) apply equally to both living and dead persons.
{¶ 15} Next, we determined that a decedent's cause of death necessarily indicates
that person's "past * * * physical * * * status or condition." R.C. 3701.17(A)(2).
Consequently, under R.C. 3701.17(B), ODH could not disclose an identified or identifiable
individual's cause of death absent written consent or the applicability of one of the statutory
exceptions. Walsh at ¶ 15.
{¶ 16} Finally, we concluded that, even though R.C. 3705.23 permits members of
the public to obtain certified death certificates that state an individual's cause of death, that
information remains protected health information under R.C. 3701.17(B). We reasoned
that release of cause of death information on a death certificate is restricted under R.C.
Chapter 3705 because issuance of a death certificate is contingent upon an applicant
complying with the statutorily mandated procedure and the copy being duly certified. We
thus concluded that "[t]he fact that a decedent's cause of death, which qualifies as protected
health information under R.C. 3701.17, may be disclosed to the public by the issuance of a
certified copy of a death certificate pursuant to R.C. 3705.23, does not mean that
information is not otherwise prohibited from release for the purpose of R.C. 149.43." Walsh
at ¶ 20. After examining the relevant statutes, we found "no indication of General Assembly
No. 21AP-369 6
intent to exclude a decedent's cause of death information from the confidentiality
protection of R.C. 3701.17, except as necessary or required under that statute, or to the
extent that information is obtainable pursuant to R.C. 3705.23." Walsh at ¶ 21.
{¶ 17} On appeal, Ludlow attacks Walsh because it failed to take into consideration
R.C. 3705.231. Pursuant to that statute, "[a] local registrar shall allow an individual to
photograph or otherwise copy a birth or death record." Consequently, contrary to what we
indicated in Walsh, applying for a certified death certificate is not the only method provided
in R.C. Chapter 3705 to obtain cause of death information on a death certificate. However,
R.C. 3705.231 imposes its own restrictions to access: an individual must go to a local
registrar and request to photograph or copy the relevant death record. R.C. 3705.231 does
not require local registrars to issue uncertified copies of death certificates in response to
requests. Given the limitations to access inherent in R.C. 3705.231, the reasoning of Walsh
remains sound.
{¶ 18} Walsh resolves the two arguments Ludlow raises on appeal in ODH's favor:
(1) R.C. 3701.17(B) applies to deceased individuals and (2) the disclosure of cause of death
on a death certificate does not disqualify cause of death as protected health information
subject to R.C. 3701.17(B). Thus, we need only address an additional point Ludlow raises
in relation to the latter point, i.e., information regarding a specified individual's cause of
death qualifies as protected health information under R.C. 3701.17, even if it might be
disclosed elsewhere.
{¶ 19} Ludlow points to a statutory provision not considered in Walsh, R.C.
313.10(A)(1), which provides that, absent an applicable exception, "the detailed
descriptions of the observations written during the progress of an autopsy and the
conclusions drawn from those observations * * * made personally by the coroner or by
anyone acting under the coroner's direction [ ] are public records." Ludlow argues that
because an autopsy report discloses the named decedent's cause of death and autopsy
reports may be released pursuant to a public-records request, a named decedent's cause of
death cannot constitute personal health information under R.C. 3701.17.
{¶ 20} We apply the logic of Walsh to this argument. True, R.C. 313.10(A)(1) may
permit an individual to discover an identified decedent's cause of death through a public-
records request of an autopsy report from a coroner's office. The fact that a particular
No. 21AP-369 7
decedent's cause of death may be disclosed that way, however, does not mean that that
information is not otherwise prohibited from release when a request like Ludlow's is made
of ODH because of the limitations imposed by R.C. 3701.17. See Walsh, 10th Dist. No.
21AP-109, 2022-Ohio-272, at ¶ 20. We, therefore, decline to depart from the holding in
Walsh.
{¶ 21} Ludlow does not contest that disclosure of a decedent's name and address,
along with the cause of the decedent's death, would reveal the decedent's past physical
health status or condition, as well as the identity of the individual. Consequently, the record
Ludlow sought in his request contained protected health information, which ODH properly
withheld pursuant to R.C. 3701.17(B). We thus conclude that the trial court erred in
ordering ODH to produce the requested record, and we sustain the second assignment of
error.
{¶ 22} By ODH's first assignment of error, it argues that the trial court erred in
ordering it to create a new spreadsheet in order to respond to Ludlow's public-record
request. Our resolution of the second assignment of error renders the first assignment of
error moot, so we do not address it.
{¶ 23} For the foregoing reasons, we sustain the second assignment of error, which
renders the first assignment of error moot. We reverse the judgment of the Court of Claims
of Ohio.
Judgment reversed.
BEATTY BLUNT and MENTEL, JJ., concur.