[Cite as Cuyahoga Cty. Bd. of Health v. Lipson O'Shea Legal Group, 2013-Ohio-5736.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99832
BOARD OF HEALTH OF CUYAHOGA COUNTY PLAINTIFF-APPELLEE
vs.
LIPSON O’SHEA LEGAL GROUP DEFENDANT-APPELLANT
JUDGMENT: REVERSED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-784198
BEFORE: Jones, J., Celebrezze, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: December 26, 2013 ATTORNEYS FOR APPELLANT
Ronald A. Annotico Michael J. O’Shea Lipson O’Shea Legal Group Beachcliff Market Square 19300 Detroit Road, Suite 202 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Brian R. Gutkoski Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Lipson O’Shea Legal Group (“law firm”), appeals the
trial court’s granting of summary judgment in a declaratory judgment action in favor of the
plaintiff-appellee, Board of Health of Cuyahoga County, Ohio (“BOH”). For the reasons
that follow, we reverse.
I. Procedural History and Facts
{¶2} In January 2012, the law firm emailed the following public records request to
the BOH:
This is a request for public records to the 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 mb/D1.
***
{¶3} Pursuant to the law firm’s request, the BOH identified 110 files consisting of
more than 5,000 pages of documents, but concluded that the documents contained
“protected health information” that would identify, or could be used to identify, the
individuals who were subject of that information. The BOH determined it was prohibited
by law from producing any of the requested records.
{¶4} The BOH subsequently filed a complaint for declaratory judgment in
Cuyahoga County Common Pleas Court, asking the court to determine whether the records were exempt from release as public records under R.C. 149.43. The board filed 12 lead
assessment investigation files as a representative sample for the court’s in camera review.
The records were filed under seal.
{¶5} The 12 sample files included: (1) Comprehensive Questionnaire of
Parent/Guardian of Children With Elevated Blood Lead Levels, which included the child’s
name, date of birth, address, family and school information, blood test results, and the
names, addresses, telephone numbers and employment information of the child’s
parent/guardian; (2) Lead Risk Assessment Report, which identified the property owner
and address; (3) Letter of Notice to the child’s parent/guardian; (4) Letter of Notice to the
property owner; (5) Lead Clearance Report, which included the property owner’s name
and address and a corresponding letter to the child’s parent/guardian; (6) Order to Control
Lead Hazard sent to the property owner and listing the property address; and (7) other
investigatory documents that identified the property owner and/or gave the property’s
address.
{¶6} It is undisputed that the information contained in the documents was not set
forth in summary, statistical, or aggregate form.
{¶7} The BOH moved for summary judgment, which the law firm opposed. The
trial court granted the BOH’s motion, finding that the records contained protected health
information that described a child’s past, present, or future physical condition that would
reveal or could be used to reveal the child’s identity and, as such, were confidential and
exempt from release as a public record pursuant to R.C. 3701.17 and 149.43(A)(1)(v). {¶8} The law firm filed a timely notice of appeal, and now raises one assignment of
error for our review: “The trial court erred in granting appellee’s motion for summary
judgment.”1
II. Law and Analysis
{¶9} In its sole assignment of error, the law firm argues that the trial court erred in
granting the BOH’s motion for summary judgment.
{¶10} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 7, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶11} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶12} The moving party carries an initial burden of setting forth specific facts that
On appeal, the parties do not address the arguments made in the trial court with regard to 1
the law firm’s request being improper as vague and overbroad or that disclosure is only warranted if the law firm can show that the records would assist in monitoring the BOH’s compliance with its statutory duties. Therefore, we will not address these aspects of the trial court’s opinion in this appeal. demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d
280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary
judgment is not appropriate; if the movant does meet this burden, summary judgment will
be appropriate only if the nonmovant fails to establish the existence of a genuine issue of
material fact. Id. at 293.
Ohio Public Records Act
{¶13} The Ohio Public Records Act is codified at R.C. 149.43. Courts “construe
the Public Records Act liberally in favor of broad access and resolve any doubt in favor of
disclosure of public records.” State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga
Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 17, citing
State ex rel. Rocker v. Guernsey Cty. Sheriffs’ Office, 126 Ohio St.3d 224,
2010-Ohio-3288, 932 N.E.2d 327, ¶ 6. Exceptions to disclosure under the Public
Records Act are strictly construed against the public records custodian, and the custodian
has the burden to establish the applicability of an exception. State ex rel. Cincinnati
Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10,
citing State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶
30. The records custodian does not meet this burden if it has not proven that the
requested records “fall squarely within the exception.” Jones-Kelley at id.
{¶14} R.C. 149.43(A)(1)(v) provides that “[r]ecords the release of which is
prohibited by state or federal law” are not “public records.” Thus, a record whose
release is prohibited by a state or federal law, is not a public record and not subject to disclosure.
{¶15} The BOH argues that state law prohibits the disclosure of the requested
records; specifically, R.C. 3701.17, which prohibits the BOH from releasing records that
contain “protected health information.”
{¶16} R.C. 3701.17(A)(2) 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.
{¶17} 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” unless written consent is obtained by the affected
party or unless the information falls within four enumerated exceptions. R.C.
3701.17(B)(1)-(4). None of the exceptions apply to the case at bar.
{¶18} The law firm contends that many of the records it requested do not contain
“protected health information” as defined by R.C. 3701.17(A)(2) or, once redacted, will
not contain protected health information. Therefore, the law firm argues, many of the documents it seeks are not exempt from disclosure.
{¶19} The law firm relies on the Ohio Supreme Court’s decision in State ex rel.
Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, 844 N.E.2d 1181,
to support its position. In Daniels, a local newspaper filed a mandamus action seeking
release, pursuant to the Ohio Public Records Act, of the Cincinnati Health Department’s
lead-contamination notices. The department had issued notices to property owners who
owned homes and apartments that housed children whose blood tests revealed elevated
lead levels. The health department refused the newspaper’s request, citing federal
privacy laws (HIPAA).
{¶20} The Ohio Supreme Court found that the lead-citation notices and lead
assessment reports did not contain protected health information under HIPAA because the
notices and reports did not identify a particular child with any specific identifiable
information. Thus, the notices did not contain “protected health information” under
HIPAA.
{¶21} The court further found even if the lead-citation notices and lead-risk
assessment reports contained “protected health information,” the reports would be
subject to disclosure under the “required by law” exception to HIPAA because the Ohio
Public Records Law required disclosure of these reports, and HIPAA did not supersede
state disclosure requirements. Id. at paragraph two of the syllabus.
{¶22} The BOH argues, and we agree, that Daniels is distinguishable from the
instant case. Not only are we interpreting a state law in this case, but many of the records do contain at least some identifying information.
{¶23} We find the recent Ohio Supreme Court decision in O’Shea, 131 Ohio St.3d
149, 2012-Ohio-115, 962 N.E.2d 297, more instructive. In O’Shea, the law firm
requested copies of documents that documented all instances of lead poisoning in the last
15 years in any CMHA dwelling. The requested records included:
resident information, including the name, address, and telephone number of
the resident and any children’s names and dates of birth * * * general
information, including where the child was likely exposed to lead, when the
family moved into the home, the addresses, ages, and conditions of the
dwellings in which the child resided in the past 12 months, and the dates of
residency, and similar information if the child is cared for away from home *
* * queries designed to determine the child’s exposure to lead, including
lead-based paint and lead-contaminated dust hazards, lead-in-soil hazards,
occupational and hobby-related hazards, child-behavior risk factors, and
other household-risk factors. For the occupational hazards, the
questionnaire requests the family or other occupants’ names, places of
employment, jobs, and probable lead exposure on the job.
Id. at ¶ 10.
{¶24} The records also included a “CMHA authorization for the release of medical
information used to obtain a child’s medical records held by the Cleveland Department of
Public Health Lead Poisoning Prevention Program.” Id. The release form included the “name of the parent or guardian of the minor child, the name, age, and address of the
child, and the parent’s or guardian’s signature and Social Security number.” Id.
CMHA refused to release any of the requested records, arguing that they were not public
records. The Ohio Supreme Court determined that although CMHA’s lead-poisoning
records contained identifying information that should not be disclosed, the records should
not be completely excluded from release. The court noted that the lead-poisoning forms:
further CMHA’s statutory duty to “provide safe and sanitary housing
accommodations to families of low income within that district.” Like the
lead-citation notices and assessment reports in Daniels, the residence
addresses and the substantive information concerning general,
nonidentifying information, lead-based paint and lead-contaminated dust
hazards, water-lead hazards, lead-in-soil hazards, occupational or hobby
hazards, and child-behavior risk factors would all be pertinent to an analysis
of whether CMHA took steps to provide safe housing in specific CMHA
dwellings with possible lead hazards. Release of this information would help
to hold CMHA accountable for its statutory duty of reducing or eliminating
any lead-related hazard in its residences and would reveal the agency’s
success or failure in doing so, without requiring release of much of the
residents’ personal information.
Id. at ¶ 34.
{¶25} The court determined that release of any non-identifying information should be allowed and, further, that residence addresses were obtainable under R.C. 149.43
because “the addresses contained in the completed lead-poisoning questionnaires and
releases here help the public monitor CMHA’s compliance with its statutory duty to
provide safe housing.” Id. at ¶ 35. The court, however, limited disclosure so that any
personal identifying information would not be obtainable, including:
the names of parents and guardians, their Social Security and telephone numbers, their children’s names and dates of birth, the names, addresses, and telephone numbers of other caregivers, and the names of and places of employment of occupants of the dwelling unit, including the questionnaire and authorization.
Id. at ¶ 36.
{¶26} In the instant case, the BOH argues that O’Shea may be distinguished from
this case because the O’Shea court did not consider whether R.C. 3701.17 prohibited the
release of documents pursuant to the “prohibited by state law exception” found in R.C.
149.43(A)(1)(v). According to the BOH, this case differs from O’Shea because state law
specifically blocks boards of health from disclosing protected health information.
{¶27} While the law firm concedes that some of the records it requested may
contain “protected health information,” as defined in R.C. 3701.17, it argues that there are
a number of documents within the subject records that do not contain any medical or
health related information and do not identify anyone other than the landlord property
owner. According to the law firm, those documents do not contain any “protected health
information,” as defined by the statute, and even if a particular document did contain such
information, the BOH had a duty to redact the protected information and then release the redacted records pursuant to its public records request.
{¶28} In its opinion granting the BOH summary judgment, the trial court
determined that all the requested documents, including those that contained only
non-identifying information, were exempt from disclosure under R.C. 143.01(A)(1)(v)
because their release was prohibited by R.C. 3701.17. The court opined:
the records include descriptions of children’s physical condition, i.e. lead poisoning as diagnosed by test results included therein, and either reveal the identity of the individual child by name, address, and date of birth or include information that could be used to reveal the identity of the child and therefore constitute “protected health information.”
The investigations that are the subject of the records are instituted for the very reason that the children have been diagnosed as having elevated blood lead levels. Even if the personal information concerning these children and their parents was redacted so that their names, addresses, dates of birth, telephone numbers, test results, schools attended, sibling and/or employment information would not be revealed, the non-personal identifying information that remains, communications to the property owners that include their names and addresses and information about the properties at issue could be used with other information that is available to predictable recipients of the information, to reveal the identity of the individual child.
Moreover, even if some portions of the information contained in the records
do not constitute “Protected health information,” the fact remains that the
information is not in a summary, statistical, or aggregate form and therefore,
under R.C. 3701.17(C)[,] it may not be released.
{¶29} As it pertains to this case, the health information the BOH is charged with
protecting its information, in any form, that describes a child’s past, present, or future
physical or mental health status or condition, receipt of treatment or care, if the
information reveals the child’s identity or could be used to reveal the child’s identity, either by using the information alone or with other information that is available to
predictable recipients of the information.
{¶30} Some of the information contained in the records constitutes “protected
health information” as defined in R.C. 3701.17(A). Therefore, pursuant to R.C.
143.01(A)(1)(v) and R.C. 3701.17, that information is not subject to disclosure. We
decline, however, to determine that all the information the law firm sought is protected
health information, which would render it exempt from production.
{¶31} In other words, a blanket exemption, which is what the BOH seeks, is not
appropriate, nor does it uphold the intent of the Public Records Act. Instead, the BOH
must consider each document to determine if the record contains “protected health
information,” and redact the document accordingly. If a record contains some material
that is excepted from disclosure, the governmental body is obligated to disclose the
nonexcepted material, after redacting the excepted material. State ex rel. Natl.
Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 85, 526 N.E. 2d 786 (1988).
{¶32} Once the identifying personal information is redacted, if the information
contained in the record is still “protected health information,” i.e., it could still be used to
identify the child, then that document is not subject to disclosure. But if the document
contains only non-identifying information (of the affected child, family member, or
parent/guardian) either on its face or after redaction, it does not, by definition contain
“protected health information” and is subject to disclosure.
{¶33} After a de novo review of the sample documents, we note that some of the documents, such as Letters of Notice to the landlord property owner, do not on their face
contain “protected health information” because they do not describe a child’s past, present,
or future physical or mental health status or condition, receipt of treatment or care.
{¶34} We agree with the BOH that the child data forms that include a child’s
medical information are not subject to disclosure, even after redaction, because those
forms, in and of themselves, are “protected health information.” But we do not agree that
the disclosure of (1) the property owner’s name and address, if the property owner is not
the parent/guardian of the affected child, and (2) the address of the property, are sufficient
to trigger the provision in R.C. 3701.17(A)(2)(b) that prohibits disclosure if the
information could be used to reveal the affected child’s identity “if used with other
information that is available to predictable recipients of the information.”
{¶35} Therefore, the landlord property owner’s name and address and the
property’s address are subject to disclosure. But any personal identifying information,
including, but not limited to, the affected child’s and parent/guardian’s name, caregiver
information, social security numbers, addresses, dates of birth, telephone numbers, test
results, schools attended, sibling, and/or parent/guardian employment information must be
redacted.
{¶36} In O’Shea, 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, the Ohio
Supreme Court specifically noted that release of the requested information “would help to
hold CMHA accountable for its statutory duty of reducing or eliminating any lead-related
hazard in its residences and would reveal the agency’s success or failure in doing so, without requiring release of much of the residents’ personal information.” Id. at ¶ 34.
{¶37} In this case, the BOH is currently operating a lead hazard control and health
homes program under a $3.4 million federal grant and “endeavors to pursue elimination of
lead hazards each year.” Affidavit of BOH Commissioner Terry Allan, ¶ 16. Release
of the requested information could likewise help to hold the BOH accountable for its duty
and promise to reduce lead-related hazards in Ohio’s largest county and reveal its
successes or failures in doing so, also without requiring the release of prohibited
{¶38} In light of the above, the trial court erred in granting summary judgment to
the BOH. The sole assignment of error is sustained.
{¶39} Accordingly, judgment reversed and case remanded to the trial court for
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
FRANK D. CELEBREZZE, JR., P.J., and TIM McCORMACK, J., CONCUR