Miller v. Ohio Dept. of Health, Vital Statistics , 2021 Ohio 1901 ( 2021 )

[Cite as Miller v. Ohio Dept. of Health, Vital Statistics, 2021-Ohio-1901.]
ROSANNA L. MILLER Case No. 2020-00618PQ
Requester Judge Patrick E. Sheeran
v. DECISION AND ENTRY
OHIO DEPARTMENT OF HEALTH,
VITAL STATISTICS
Respondent
{¶1} Respondent Ohio Department of Health, Vital Statistics (ODH) objects to a
Special Master’s Report and Recommendation. The Court overrules ODH’s objections
for reasons set forth below.
I. Background
{¶2} On October 23, 2020, Requester Rosanna L. Miller brought a complaint
against ODH, alleging that she had been denied access to public records in violation of
R.C. 149.43(B). Miller included attachments with the complaint. The attachments show
that, on April 20, 2020, Miller asked ODH to “run a report for all Cause of Deaths in Ohio
coded as Covid-19 (U07.1)” and Miller included certain search criteria with her request.
{¶3} The Clerk of this Court appointed a special master who declined to refer the
case to mediation. On March 23, 2021, the Special Master issued a Report and
Recommendation (R&R). The Special Master stated in the R&R’s conclusion:
The evidence before the court demonstrates that respondent keeps
multiple databases containing the records responsive to the request and
that respondent can produce the requested data output using existing
software. Respondent has not shown that the records, compiled from
death certificates required to be disclosed in their entirety to any person,
Case No. 2020-00618PQ -2- DECISION & ENTRY
become exempt from release as personal health information when
aggregated in its databases.
Accordingly, the special master recommends the court order
respondent to provide requester with the requested records. It is further
recommended the court order that requester is entitled to recover from
respondent the amount of the filing fee of twenty-five dollars and any other
costs associated with the action that she has incurred. It is recommended
costs be assessed to respondent.
(R&R, 17.)
{¶4} On April 2, 2021, ODH filed written objections to the Special Master’s R&R.
In a certificate of service accompanying the objections, ODH’s counsel certified that the
objections were served on Miller by means of email and this Court electronic filing
system. Miller has filed a response in opposition to ODH’s objections. In a certificate of
service accompanying the response, Miller certified that her response was served on
ODH’s counsel by means of email and this Court electronic filing system.
II. Law and Analysis
{¶5} R.C. 2743.75(F)(2) governs objections to a special master’s report and
recommendation. Pursuant to R.C. 2743.75(F)(2), either party “may object to the report
and recommendation within seven business days after receiving the report and
recommendation by filing a written objection with the clerk and sending a copy to the
other party by certified mail, return receipt requested. * * * If either party timely objects,
the other party may file with the clerk a response within seven business days after
receiving the objection and send a copy of the response to the objecting party by
certified mail, return receipt requested. The court, within seven business days after the
response to the objection is filed, shall issue a final order that adopts, modifies, or
rejects the report and recommendation.”
Case No. 2020-00618PQ -3- DECISION & ENTRY
{¶6} ODH has failed to send a copy of its objections to Miller by certified mail,
return receipt requested, as required by R.C. 2743.75(F)(2). And Miller has failed send
a copy of her response to ODH’s counsel by certified mail, return receipt requested, as
required by R.C. 2743.75(F)(2). Thus, both ODH’s objections and Miller’s response are
procedurally deficient. The Court nonetheless will consider the objections and response
in the interest of justice.
{¶7} ODH contends in its objections that (1) it is not required to conduct an
unique database query to compile a “customized dataset” in response to Miller’s public-
records request, (2) ODH’s previous production of “customized datasets” is not
justification for future disclosure as the principle of estoppel does not apply to the state,
and (3) if ODH is required to compile “customized datasets” of death data in response to
a public-records request, then R.C. 3701.17 is the mechanism through which ODH does
not disclose protected health information.
{¶8} Notwithstanding ODH’s objections, the Court finds that the Special Master
identified the pertinent issues and reached the correct legal determination based on the
ordinary application of statutory law and case law, as they existed at the time of the
filing of the complaint. Generally, estoppel “does not apply against the state, its
agencies, arms, and agents.” Mateer v. Dir., Ohio Dept. of Job & Family Servs., 10th
Dist. Franklin No. 07AP-966, 2008-Ohio-1426, ¶ 6. Here, however, the principal issue
concerns whether a request for reconfigured data using existing software constitutes an
improper request for research. The Ohio Supreme Court has explained that “to
constitute improper research, a record request must require the government agency to
either search through voluminous documents for those that contain certain information
or to create a new document by searching for and compiling information from existing
records.” State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 2015-Ohio-2363,
41 N.E.3d 1203, ¶ 22. In the Court’s view, the evidence shows that ODH was not
required to search through voluminous documents or create a new document by
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searching for and compiling information from existing records to fulfill Miller’s public-
records request. Rather, ODH simply was required to use its existing software, input
search criteria provided by Miller, and produce a report with information that was readily
available.
{¶9} ODH asserts that, if it is required to compile customized datasets of death
data in response to a public-records request, then R.C. 3701.17 is the mechanism
through which ODH does not disclose protected health information. See R.C.
3701.17(A)(2) (defining the term “protected health information,” as used in R.C.
3701.17). Pursuant to R.C. 3701.17(C), “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 [R.C. 149.43] and, upon request,
shall be released by the director.” See R.C. 3701.17(D) (generally requiring a
disclaimer to accompany release of information). Thus, under R.C. 3701.17(C) so long
as the report requested by Miller provides information in summary, statistical, or
aggregate form, the report requested by Miller does not run afoul of R.C. 3701.17.
Moreover, based on the Court’s review of R.C. 3701.17, the statute does not provide
that R.C. 3701.17 is sole the mechanism through which ODH does not disclose
protected health information. Indeed, construing the Ohio Public Records Act, the Ohio
Supreme Court has stated, “‘R.C. 149.43(A) envisions an opportunity on the part of the
public office to examine records prior to inspection in order to make appropriate
redactions of exempt materials.’” State ex rel. Office of Montgomery Cty. Pub. Defender
v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, 842 N.E.2d 508, ¶ 17, quoting State ex
rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 623, 640 N.E.2d 174(1994).
III. Conclusion
Case No. 2020-00618PQ -5- DECISION & ENTRY
{¶10} The Court overrules ODH’s objections. The Court adopts the Special
Master’s Report and Recommendation. The Court ORDERS ODH to forthwith provide
Miller with the requested records in accordance with the Special Master’s
recommendation. Miller is entitled recover from ODH the amount of the filing fee of
twenty-five dollars and any other costs associated with the action that are incurred by
Miller, but Miller is not entitled to recover attorney fees. Court costs are assessed to
ODH. The clerk shall serve upon all parties notice of this judgment and its date of entry
upon the journal.
PATRICK E. SHEERAN
Judge
Filed May 4, 2021
Sent to S.C. Reporter 6/4/21