Miller v. Ohio Dept. of Health , 2022 Ohio 357 ( 2022 )

[Cite as Miller v. Ohio Dept. of Health, 2022-Ohio-357.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Rosanna L. Miller, :
Requester-Appellee, : No. 21AP-267
(Ct. of Cl. No. 2020-00618PQ)
v. :
(REGULAR CALENDAR)
Ohio Department of Health, :
Vital Statistics,
:
Respondent-Appellant.
:
D E C I S I O N
Rendered on February 8, 2022
On brief: Barron, Peck, Bennie, & Schlemmer, Co., LPA, and
Matthew Miller-Novak; Jennifer Kinsley, for appellee.
Argued: Matthew Miller-Novak.
On brief: Dave Yost, Attorney General, William C. Greene,
and Theresa R. Dirisamer, for appellant. Argued:
Theresa R. Dirisamer.
APPEAL from the Court of Claims of Ohio
LUPER SCHUSTER, P.J.
{¶ 1} Respondent-appellant, Ohio Department of Health, Vital Statistics ("ODH"),
appeals from a judgment of the Court of Claims of Ohio ordering ODH to provide requester-
appellee, Rosanna L. Miller, with records she requested. For the following reasons, we
reverse and remand with instructions to dismiss Miller's complaint.
I. Facts and Procedural History
{¶ 2} In April 2020, Miller requested ODH "run a report for all Cause of Deaths in
Ohio coded as Covid-19 (U07.1)," with each decedent's name, age, place of death, and other
information included in the report. (Apr. 20, 2020 e-mail, attached to Oct. 23, 2020
No. 21AP-267 2
Compl.) ODH denied Miller's request. In October 2020, Miller initiated this matter against
ODH, alleging she was improperly denied access to public records pursuant to R.C.
149.43(B). In November 2020, ODH moved to dismiss Miller's complaint pursuant to
Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. In March 2021,
a Court of Claims appointed special master filed a report and recommendation
recommending the court order ODH to provide Miller with the requested records. ODH
filed objections to the special master's report and recommendation. In May 2021, the Court
of Claims overruled ODH's objections and adopted the special master's report and
recommendation. Consequently, the Court of Claims ordered ODH to provide Miller with
the requested records.
{¶ 3} ODH timely appeals.
II. Assignments of Error
{¶ 4} ODH assigns the following errors for our review:
1. The lower court erred when it ordered the Department to
create a new spreadsheet from the death records 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.
III. Discussion
{¶ 5} Because it is dispositive of this appeal, we first address ODH's second
assignment of error, which generally alleges the Court of Claims erred in ordering ODH to
provide Miller with the requested records. ODH argues that granting Miller's request
would require it to impermissibly provide information that is protected health information
under R.C. 3701.17. We agree.
{¶ 6} At issue is whether ODH had a duty to grant Miller's public records request
pursuant to Ohio's Public Records Act, R.C. 149.43. This Act requires a public office, upon
request, to promptly make public records available for inspection or to provide copies of
the records within a reasonable period of time. See R.C. 149.43(B)(1) (stating that "all
public records responsive to the request shall be promptly prepared and made available for
inspection to the requester at all reasonable times during regular business hours"). For the
No. 21AP-267 3
purpose of R.C. 149.43, "public record" means "records kept by any public office, including,
but not limited to, state, county, city, village, township, and school district units, and
records pertaining to the delivery of educational services by an alternative school in this
state kept by the nonprofit or for-profit entity operating the alternative school pursuant to
section 3313.533 of the Revised Code." R.C. 149.43(A)(1). "Records" are "any document,
device, or item, regardless of physical form or characteristic, including an electronic record
as defined in section 1306.01 of the Revised Code, created or received by or coming under
the jurisdiction of any public office of the state or its political subdivisions, which serves to
document the organization, functions, policies, decisions, procedures, operations, or other
activities of the office." R.C. 149.011(G). However, "records the release of which is
prohibited by state or federal law" are not "public records." R.C. 149.43(A)(1)(v).
{¶ 7} On the authority of Walsh v. Ohio Dept. of Health, 10th Dist. No. 21AP-109,
2022-Ohio-272, we find ODH had no duty to grant Miller's R.C. 149.43 public records
request because R.C. 3701.17 prohibits the release of information contained within those
records. In Walsh, this court held that ODH had no duty to grant the public records request
for ODH's death records database, which includes cause of death and other information for
each decedent, because R.C. 3701.17 precluded ODH's release of protected health
information within that database, despite that information being on death certificates
obtainable by the public pursuant to R.C. 3705.23. For the reasons discussed in Walsh, the
records Miller requested contain information that is exempt from the definition of "public
records" under R.C. 149.43. Thus, ODH properly denied Miller's public records request.
Because the Court of Claims erred in ordering ODH to provide Miller with the requested
records, we sustain ODH's second assignment of error.
{¶ 8} ODH's first assignment of error alleges the Court of Claims erred in ordering
ODH to provide Miller with the requested records because it would require ODH to create
a new document to comply with the request.1 While "public records" must be made
available upon request, there is no duty under R.C. 149.43 "to create records that do not
exist." State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139,
1 Unlike in Walsh, wherein the requester sought ODH's entire death records database, Miller's request was
limited to information relating to Ohio deaths caused by COVID-19.
No. 21AP-267 4
2012-Ohio-4246, ¶ 26. ODH argues Miller's requested records, concerning only COVID-19
caused deaths in Ohio, do not exist and therefore it had no duty to create and produce the
records. Conversely, Miller argues the requested records exist because ODH easily can
produce them using its current computer software and programming. It is unnecessary,
however, to resolve this dispute based on our disposition of ODH's second assignment of
error. Assuming the records Miller requested do exist for the purpose of R.C. 149.43, such
records would include protected health information exempt from the definition of "public
records." Thus, ODH's challenge to the Court of Claim's finding concerning the existence
of the requested records is moot.
{¶ 9} Accordingly, our disposition of ODH's second assignment of error renders
moot ODH's first assignment of error.
IV. Disposition
{¶ 10} Having sustained ODH's second assignment of error, and finding as moot its
first assignment of error, we reverse the judgment of the Court of Claims of Ohio and
remand this matter to that court with instructions to dismiss Miller's complaint.
Judgment reversed;
cause remanded with instructions.
DORRIAN, J., concurs.
JAMISON, J., concurs in part and dissents in part.
DORRIAN, J., concurring.
{¶ 11} Consistent with my concurrence in Walsh v. Ohio Dept. of Health, 10th Dist.
No. 21AP-109, 2022-Ohio-272, I concur with the majority that the Court of Claims erred in
ordering ODH to provide Miller the requested records. I write separately to additionally
observe that the specific records requested by Miller included a request for the name and
place of death of each decedent. Because the records requested both: (1) described the
decedents' past physical status or condition, receipt of treatment or care or purchase of
health products, and (2) included information that reveals the identity of each decedent or
could be used to reveal the identity of each decedent, the records met the definition of
protected health information pursuant to R.C. 3701.17(A)(2). Had Miller's request not
included a request for information that reveals the identity of each decedent or information
that could be used to reveal the identity of each decedent, e.g., name, place of death, the
No. 21AP-267 5
request would not have met the definition and would not have been exempted from the
definition of public records pursuant to R.C. 149.43(A)(1)(v) and 3701.17(B). "Information
that does not identify an individual is not protected health information and may be released
in summary, statistical or aggregate form. 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).
JAMISON, J., concurring in part and dissenting in part.
{¶ 12} I respectfully disagree with the majority that the trial court erred in ordering
ODH to produce records pursuant to R.C. 149.43.
The Public Records Act "mandates access to public records
upon request unless the requested records are specifically
excepted from disclosure." Lucas Cty. Bd. of Commrs., 88 Ohio
St.3d at 170, 724 N.E.2d 411, citing State ex rel. Miami Student
v. Miami Univ., 79 Ohio St.3d 168, 170, 1997-Ohio-386, 680
N.E.2d 956 (1997). "Release may be prohibited by an exception
or by another statute providing protection to the subject of the
information sought." Cuyahoga Cty. Bd. of Health v. Lipson
O'Shea Legal Group, 145 Ohio St.3d 446, 2016-Ohio-556, 50
N.E.3d 499, ¶ 6. The records "custodian has the burden to
establish the applicability of an exception" to release or
access. State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-
Ohio-6714, 859 N.E.2d 948, ¶ 30. Exceptions "are strictly
construed against the public-records custodian." State ex rel.
Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-
Ohio-5995, 940 N.E.2d 1280, ¶ 24. The PRA itself " 'is
construed liberally in favor of broad access, and any doubt is
resolved in favor of disclosure of public records.' " State ex rel.
Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128
N.E.3d 179, ¶ 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).
State ex rel. CNN, Inc. v. Bellbrook-Sugarcreek Local Schools, 2d Dist. No. 2019CA0047,
2019-Ohio-4187, ¶ 12.
{¶ 13} The Public Records Act is construed in favor of disclosure of public records.
The records do exist and are available to be produced. The request would be prohibited if
Miller requested both information that described the decedents' past physical status or
No. 21AP-267 6
condition and information that reveals the identity of each decedents protected health
information pursuant to R.C. 3701.17(A)(2).
{¶ 14} In Cuyahoga Cty. Bd. of Health v. Lipson O'Shea Legal Group, 145 Ohio
St.3d 446, 2016-Ohio-556, ¶ 3, the trial court reviewed the records requested pursuant to
the Public Records Act, R.C. 149.43, and concluded that release would violate R.C. 3701.17.
Cuyahoga County BOH moved for summary judgment which was subsequently granted.
Lipson appealed. Upon review:
"[t]he 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." Id at ¶ 4.
{¶ 15} Cuyahoga County BOH then appealed to the Supreme Court of Ohio. The
records request sought "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]." Id. at ¶ 10. Although the Supreme Court held that the request was inextricably
linked to protected health information, the case was "remand[ed] 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." Id. at ¶ 12.
{¶ 16} The majority's reliance upon State ex rel. McCaffrey v. Mahoning Cty.
Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, is misplaced. McCaffrey is
distinguishable because it involves a request for a specific correspondence that the entity
says does not exist. Requester's belief does not constitute sufficient evidence to establish
that the documents do exist. Id. at ¶ 26.
{¶ 17} The Uniform Commercial Code definitions state in pertinent part, "A record
is information that is inscribed on a tangible medium or that, having been stored in an
electronic or other medium, is retrievable in perceivable form." U.C.C. 1-201(b)(31.) (Am.
Law Inst. & Unif. Law Comm'n 1977.) It is axiomatic that for a more specific request, ODH
No. 21AP-267 7
would have to put these search criteria in the computer to produce the specific data
requested. The Public Records Act is construed in favor of disclosure of public records.
ODH can produce the requested public record without releasing protected health
information.
{¶ 18} For the foregoing reasons, I respectfully dissent from the majority opinion. I
would overrule the first assignment of error and sustain, in part, the second assignment of
error. I would remand this case to the Court of Claims of Ohio to issue an order releasing
the records after all protected health information is redacted.