WCPO-TV v. Ohio Dept. of Health

[Cite as WCPO-TV v. Ohio Dept. of Health, 2021-Ohio-1151.]
WCPO-TV, A DIVISION OF Case No. 2020-00513PQ
THE E.W. SCRIPPS CO.
Special Master Jeff Clark
Requester
REPORT AND RECOMMENDATION
v.
OHIO DEPARTMENT OF HEALTH
Respondent
{¶1} The Ohio Public Records Act requires that upon request, copies of public
records be made available to any person at cost and within a reasonable period of time.
R.C. 149.43(B)(1). The state policy underlying the Act is that open government serves
the public interest and our democratic system. To that end, the public records statute
must be construed liberally in favor of broad access, with any doubt resolved in favor of
disclosure of public records. State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio
St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6.
{¶2} This action is filed under R.C. 2743.75, which provides an expeditious and
economical procedure to enforce the PRA in the Court of Claims. Requester WCPO-TV
alleges that respondent Ohio Department of Health violated the PRA by failing to
provide it with the total number of COVID-19 deaths for residents of certain Ohio long-
term care facilities.
Requests for Long-Term Care Facility COVID-19 Data
{¶3} On June 15, 2020, reporter Paula Murphy of WCPO-TV made public records
requests to the Ohio Department of Health (ODH) at VitalData@odh.ohio.gov for:
1) The number of COVID-19 deaths in 2020 from residents at Burlington
House Rehab and Alzheimer’s Care Center on Springdale Road in
Hamilton County. The Ohio Department of Health website lists 78
residents at this facility have tested positive for COVID-19. Please provide
the date of death and any other information that can be publicly released
about those deaths (age, race, sex, etc.)
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2) The total number of COVID-19 deaths in 2020 from residents of any
nursing home or long-term care facility in Hamilton, Butler, Warren and
Clermont counties. I would please request the name of the facility, and the
number of deaths of residents from COVID-19.
(Complaint at 3.) On June 16, 2020, ODH responded that:
The Ohio Department of Health is not releasing deaths at long term care
facilities by facility for COVID-19 or any other cause of death. We are only
reporting it at the county level. A person could be too identifiable and that
information is “protected health information,” as defined in section
3701.17(A)(2) of the Ohio Revised Code (“R.C.”).
(Complaint at 2.)
{¶4} On August 20, 2020, WCPO filed a complaint pursuant to R.C. 2743.75
alleging denial of access to public records. Following unsuccessful mediation, ODH filed
a motion to dismiss (Response) on November 25, 2020. On December 3, 2020, WCPO
filed a reply. On December 18, 2020, ODH filed a response to the reply (Sur-reply). On
December 28, 2020, WCPO filed a supplemental pleading. On March 4, 2021, ODH
filed a response to the court’s Order of February 16, 2021.
Motion to Dismiss
{¶5} To dismiss a complaint for failure to state a claim upon which relief can be
granted, it must appear beyond doubt that the claimant can prove no set of facts
warranting relief after all factual allegations of the complaint are presumed true and all
reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co.
v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set
of facts consistent with the complaint that would allow the claimant to recover, dismissal
for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84,
2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
{¶6} ODH argues the complaint fails to state a claim because the requested
records do not exist. On review, non-existence of the requested data output is not
established on the face of the complaint and attachments. Moreover, as the matter is
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now fully briefed this argument is subsumed in ODH’s defense on the merits. It is
therefore recommended that that the motion to dismiss be denied.
Burden of Proof
{¶7} A requester must establish a public records violation by clear and convincing
evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). At
the outset, the requester bears the burden of production to plead and prove facts
showing it sought identifiable public records pursuant to R.C. 149.43(B)(1). Welsh-
Huggins v. Jefferson Cty. Prosecutor’s Office, Slip Opinion No. 2020-Ohio-5371, ¶ 33.
WCPO must show that the items sought meet the statutory definition of “records,” and
that the records were kept by ODH.
{¶8} ODH asserts that, 1) the requested datasets cannot be produced from the
ODH data management system, and 2) the requested datasets are exempt from
disclosure as “protected health information.”
Request for ODH “Records”
{¶9} “Records” are defined in R.C. 149.011(G) as
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.
“Records” includes documents, items within them, and reports or files aggregated from
separate records. Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811,
¶ 24, fn. 3; State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer,
131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 28-38.
{¶10} ODH does not dispute that it receives and maintains the COVID-19 death
data sought in the requests, as records of the agency. However, ODH argues that no
single ODH data system, as programmed, is capable of producing the particular output
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sought by WCPO’s requests. Analysis thus turns to the capabilities of ODH data
systems containing COVID-19 data for residents of long-term care facilities.
Ohio Disease Reporting System (ODRS)
{¶11} The Ohio Disease Reporting System (ODRS) is a data management
system for tracking, inter alia, COVID-19 infection incidence and the infected individuals’
identity, demographics, and death information. (Response, Exh. D – Tarter Aff. I at ¶ 7,
13, 17.) Collection of COVID-19 information for the ODRS is controlled by the Infectious
Disease Control Manual (IDCM).1 The IDCM prescribes entry of “membership in a risk
cohort,” which can include living in a “long-term care facility” (Id. at ¶ 12-13, 16.),
defined as:
long-term acute care hospitals, skilled nursing facilities, assisted living
facilities, residential care facilities, intermediate care facilities for the
intellectually disabled, wrap-around facilities, and any other facilities
providing comparable services.
IDCM, Section 3, Coronavirus Disease 2019 (COVID-19), p. 12. The entry field for
“long-term care facility” has only Yes, No, or Unknown as options. (Tarter Aff. I at ¶ 15.)
Per the IDCM and the instructions in the 2019 Novel Coronavirus Case Report Form,2
an individual’s residential address is not required reporting information. Nor do the
IDCM or form require entry of long-term care facility names or addresses. (Id. at ¶ 31-
32, 34.) The ODRS contains fields for whether the individual is deceased, and whether
the patient died as a result of COVID-19 illness. (Id. at ¶ 17.)3 If not supplied by the
reporting entity, the entry as to death from COVID-19 is made in collaboration with
1 https://odh.ohio.gov/wps/portal/gov/odh/know-our-programs/infectious-disease-control-manual
(Accessed March 26, 2021.)
2 CDC Human Infection with 2019 Novel Coronavirus Case Report Form, link embedded in IDCM,
Section 3, Coronavirus Disease 2019 (COVID-19), p. 1.
3 ODH adds that “[t]he specific cause of death is not information collected in ODRS.” (Emphasis
added.) (Id.) Although ODH does not further explain, this can only mean that specificity as to the
proximate physical symptom(s) causing death is not collected beyond the general entry of “COVID-19.”
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ODH’s Office of Vital Statistics using cause of death data from Ohio death certificates.
(Id. at ¶ 18.)
{¶12} Information in the ODRS can be sorted by fields, including county, living in
a (non-specified) long-term care facility, and cause of death (Id. at ¶ 19). However, such
street addresses as are reported in the ODRS are entered in “free form” boxes, and
ODH attests that the ODRS cannot search free form boxes. (Id. at ¶ 21-23, 34.) ODH
attests that the ODRS is thus not designed for or capable of reporting the number of
COVID-19 deaths per long-term care facility. (Id. at ¶ 30-34, 36.) WCPO counters that
any database administrator could create, i.e., program, a simple database query to
extract the desired data from the free form boxes. (Dec. 28, 2020 Boughman Aff. at ¶
11.) Based on the above facts, the special master concludes there is not clear and
convincing evidence supporting the ability of the ODRS to provide a response to either
of WCPO’s requests without additional programming.
COVID-19 Long-Term Care Facilities Chart (LTC Chart)
{¶13} The ODH separately receives positive COVID-19 test numbers of residents
and staff from each long-term care facility, independent of information received through
ODRS. (Id. at ¶ 26-27.) The data is compiled in a Long-Term Care Facilities Chart (LTC
Chart) that does not include any mortality information. (Id. at ¶ 37.) Because WCPO’s
requests seek reports that include COVID-19 deaths from long-term care facilities, and
the LTC Chart does not contain any death data, there is no evidence that this tool alone
can provide a response to either of WCPO’s requests.
Electronic Death Registration System (EDRS)
{¶14} Ohio death certificates are submitted to ODH’s Office of Vital Statistics
(ODH/VS) on a prescribed form. R.C. 3705.16(C), O.A.C. 3701-5-02(A)(2) Certificate of
death (Appendix B). Local officials may not omit any item requested on the form. O.A.C.
3701-5-02(B)(1) to (3). Requested items include the following as relevant to the
requests:
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2. Sex
3. Date of Death (Mo/Day/Year)
5a. Age (Years)
8a. Residence State
8b. County
8c. City or Town
8d. Street and Number
8f. Zipcode
14. Decedent’s Race
28. Part I. Enter the disease, injuries, or complications that caused the
death.
O.A.C. 3701-5-02(A)(2) Certificate of death (Appendix B). The death certificate data is
maintained by ODH in the Electronic Death Registration System (EDRS). R.C.
3705.07(A). ODH attests that it uses COVID-19 information from death certificates as
necessary to populate cause of death fields in the ODRS. (Tarter Aff. I at ¶ 18.) WCPO
addressed its public records requests to VitalData@odh.ohio.gov, the contact listed on
the ODH Public Health Information Warehouse Mortality page, which makes limited
information from Ohio death certificates available online.4
{¶15} ODH requires every decedent’s full residence address on the death
certificate form, and thus in the EDRS database. WCPO identified the long-term care
facility in Request No. 1 by name, county, and street. Ideally WCPO would have
provided the street number as well, but perfection is not required of public records
requests “particularly where, as here, it is evident that the public office was aware of the
specific records requested.” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33,
2006-Ohio-6365, 857 N.E.2d 1208, ¶ 37. WCPO referenced the facility as appearing in
4 https://publicappstst.odh.ohio.gov/EDW/DataBrowser/Browse/Mortality (Accessed March 31,
2021.)
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a report on the ODH website, and ODH has not objected to the request as failing to
reasonably identify the facility.
{¶16} Request No. 1 seeks COVID-19 death data for residents at a single long-
term care facility during 2020. Where the facility’s address is entered in death
certificates as the residence address, those decedents were “resident at” that facility.
The EDRS thus contains both the sorting data (residence address, date of death, and
cause of death) and the desired demographic data. EDRS data can be searched and
sorted by at least two ODH/VS databases. See Miller v. Ohio Dept. of Health, Vital
Statistics, Ct. of Cl. No. 2020-00618PQ, 2021-Ohio-996, ¶ 10-16. Under the Database
Rule, the requested dataset of COVID-19 death data for residents at the facility address
therefore exists for the purpose of the Public Records Act. See Id. at ¶ 17-20, and cases
cited therein.
{¶17} The special master concludes that Request No. 1 is a proper request for
reasonably identified, existing ODH records.
A Response Requiring the Search for and Assembly of Data from
Independent Repositories is not an “Existing” Record
{¶18} A public office is not required to organize its records for retrieval in the
manner that a requester expects or prefers, See State ex rel. Zidonis v. Columbus State
Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 28-32;
State ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. Franklin Nos. 04AP-492,
04AP-504, 2005-Ohio-3377, ¶ 86-89 (“while it is reasonable to expect that a public
office * * * would organize its records in a reasonable fashion, the fact that [requester]
made what it believes to be a specific request to [the office] does not necessarily
mandate that [the office] keeps its records in such a way that access to the records
requested was possible”), rev’d on other grounds, 110 Ohio St.3d 456, 2006-Ohio-4854.
The test of whether a public record exists is not what the public office could produce if it
wished, or what the requester believes is in the public interest, but only what the office
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is required to produce under the law. See Speros v. Secy. of State, Ct. of Cl. No. 2017-
00389PQ, 2017-Ohio-8453, ¶ 14-21, 28-29, and cases cited therein.
{¶19} Request Number 2 seeks a total COVID-19 death number for “any nursing
home or long-term care facility in Hamilton, Butler, Warren and Clermont counties.”
Unlike Request No. 1, WCPO did not provide ODH with the facility names or addresses
in this request, meaning that sorting term is absent. ODH is not required to cross-
reference information from other sources to discern which residence addresses in the
EDRS are those of long-term care facilities. See Oriana House, Inc. v. Montgomery at ¶
9.
{¶20} WCPO argues that for ODH to perform its functions related to the COVID-
19 pandemic it should be able to produce the number of COVID-related deaths for
individual long-term care facilities. (Reply at 1). Indeed, ODH does not deny that it could
do so by manually combining data from multiple databases or by programming a
unique, newly coded query. However, ODH credibly denies that it can produce the
output from a single database, or that an ODH data management system can combine
data from multiple databases using existing programming, which is all it is mandated to
do under current public records law. See Miller v. Ohio Dept. of Health, Vital Statistics,
Ct. of Cl. No. 2020-00618PQ, 2021-Ohio-996, ¶ 17-20, and cases cited therein.
{¶21} The special master concludes that WCPO has not shown by clear and
convincing evidence that the dataset described in Request No. 2 is an existing record.
ODH Failed to Provide WCPO the Opportunity to Revise an
Ambiguous or Overly Broad Request
{¶22} By not specifying an existing compilation of records, WCPO’s Request No.
2 was a form of “overly broad” request. See Oriana House, Inc. v. Montgomery at ¶ 9,
90-93. When denying an overly broad request, a public office is required to
provide the requester with an opportunity to revise the request by
informing the requester of the manner in which records are maintained by
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the public office and accessed in the ordinary course of the public office’s
or person’s duties.
R.C. 149.43(B)(2). ODH did not provide WCPO with an opportunity to revise the request
and made no effort to explain the manner in which COVID-19 records are maintained
and accessed in the ordinary course of ODH’s duties. ODH thereby committed a per se
violation of R.C. 149.43(B)(2). State ex rel. ESPN, Inc. v. Ohio State Univ., 132 Ohio
St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 10-15.
{¶23} The General Assembly encourages negotiation to optimize the scope,
speed, format, economy, and delivery of public records for requesters, see R.C.
149.43(B)(2), (3), (5), (6), (7) and (9). Ohio courts discourages semantic evasion, State
ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d
1208, ¶ 37, 56-59; Sutelan v. Ohio State Univ., Ct. of Cl. No. 2019-00250PQ, 2019-
Ohio-3675, ¶ 15-16, or forcing requesters to guess what data, organization, or formats
are available, State ex re. Cater v. N. Olmsted, 69 Ohio St.3d 315, 320, 631 N.E.2d
1048 (1994); Sutelan at ¶ 17. The Supreme Court recognizes that
[t]he broad language used in R.C. 149.43 manifests the General
Assembly’s intent to jealously protect the right of the people to access
public records. We are acutely aware of the importance of the right
provided by the act and the vulnerability of that right when the records are
in the hands of public officials who are reluctant to release them.
Rhodes v. New Phila., 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 21.
{¶24} “One of the salutary purposes of the Public Records Law is to ensure
accountability of government to those being governed,” State ex rel. Strothers v.
Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997), including through the data-
gathering efforts of news media. Eye on Ohio v. Ohio Dept. of Health, Ct. of Cl. No.
2020-00279PQ, 2020-Ohio-5278, ¶ 3. ODH is thus encouraged to cooperate fully in
response to any revision of WCPO’s Request No. 2 to achieve a mutually acceptable
resolution. See State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901,
906 N.E.2d 1105, ¶ 18-20.
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Exception Claimed
{¶25} Records kept in a public office database are public, absent an applicable
exception. An exception is a law prohibiting or excusing disclosure of otherwise public
records. ODH claims that records in the relevant databases are excepted from public
records disclosure as “protected health information,” pursuant to R.C. 3701.17.
{¶26} The burden to establish an exception rests on the public office. State ex rel.
Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, Slip Opinion No. 2020-Ohio-5371,
¶ 35. Exceptions are 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. A custodian does not meet this burden if it has not proven that the
requested records fall squarely within the exception. State ex ref. Cincinnati Enquirer v.
Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of
the syllabus. Any doubt should be resolved in favor of disclosure of public records. State
ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).
Protected Health Information
{¶27} R.C. 3701.17 provides, in pertinent part:
(A) As used in this section: * * *
(2) “Protected health information” means 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.
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(B) Protected 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 * * *
(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 * * *.
Request No. 2
{¶28} As noted earlier, ODH databases cannot produce the output described in
Request No. 2. It is therefore unnecessary for the court to determine whether the
requested output falls squarely under the definition of “protected health information.”
Request No. 1
{¶29} A certified Ohio death certificate must be released to any person who pays
a fee, pursuant to R.C. 3705.23(A). ODH prints death certificates using the death
certificate data kept in the Electronic Death Registration System (EDRS). See Miller v.
Ohio Dept. of Health, Vital Statistics, Ct. of Cl. No. 2020-00618PQ, 2021-Ohio-996, ¶
10-20. The information in certified death certificates is released without any restriction
on further disclosure. By requiring unconditional public release of this information to the
public, R.C. 3705.23 specifically removes death certificate contents from application of
the general exception contained in R.C. 3701.17. Id. at ¶ 25-27. ODH fails to explain
how identical public data, requested from the same database, would be subject to the
exception in R.C. 3701.17 when aggregated in a report, but not when printed in an
individual death certificate. For more detailed analysis of the inapplicability of R.C.
3701.17 to death certificate contents, see Miller at ¶ 28-29.
{¶30} Based on the facts and circumstances of this case, the special master
concludes that ODH has not shown the clear and convincing proof5 necessary to apply
R.C. 3701.17 as an exception to disclosure of the requested records.
5 See State ex rel. Summers v. Fox, Slip Opinion No. 2020-Ohio-5585, ¶ 33.
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Conclusion
{¶31} Accordingly, the special master recommends the court order respondent to
provide requester with a copy of the records described in Request No. 1. The special
master further recommends the court find that respondent did not violate R.C.
149.43(B)(1) in denying records responsive to Request No. 2, but that ODH did violate
R.C. 149.43(B)(2) by failing to provide requester with relevant information to revise the
request. The special master recommends 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 it has incurred. It is recommended costs be
assessed to respondent.
{¶32} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state with
particularity all grounds for the objection. A party shall not assign as error on appeal the
court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
JEFF CLARK
Special Master
Filed April 1, 2021
Sent to S.C. Reporter 4/6/21