Oral Argument Preview: Protected Health Information or Public Record? Board of Health of Cuyahoga County v. Lipson O’Shea Legal Group.

Update: On February 18, 2016, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On May 19, 2015, the Supreme Court of Ohio will hear oral argument in the case of Board of Health of Cuyahoga County v. Lipson O’Shea Legal Group 14-0223. At issue in this case is whether information sought from a Board of Health in order to identify homes where children were found with elevated blood lead levels constitutes confidential health information.

Case Background

The Board of Health of Cuyahoga County (BOH), a political subdivision of the state, enforces quarantine and sanitary rules and regulations adopted by the Ohio Department of Health. Pertinent here is its responsibility in the elimination of childhood lead paint poisoning.  BOH operates a lead hazard control and health homes program under a federal grant, and is tasked by the Ohio Director of Health to implement the provisions of  Ohio’s Lead Abatement and Testing Statute. Any health care provider who finds, through testing, that a child under six has an elevated blood lead level must refer the matter to BOH for investigation.

Lipson O’Shea Legal Group (Lipson) made a public records request from the BOH for “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 mg/dcl.”

BOH responded to Lipson’s request by filing a complaint for declaratory relief to ascertain whether such records were exempt from release under Ohio’s public records act, and filed a motion for summary judgment.  After an in camera review of representative samples of the requested documents, the trial court determined that information that would or could be used to reveal the child’s identity was protected health information and granted BOH’s motion.

Lipson appealed the trial court’s order to the Eighth District Court of Appeals. In a unanimous decision, the Eighth District reversed the lower court’s ruling. While acknowledging that some of the information within the requested records was protected health information, the court was unwilling to issue a “blanket exemption” covering every record. The court ordered all specifically identifying information that fit squarely within the protected health information exception to be redacted, but held the rest should be supplied to Lipson, including general information about the property or landlord in question. The appeals court also found the release of this information would help hold BOH accountable for fulfilling its duties in lead abatement.

Key Statutes and Precedent

R.C. 3701.17 (“Protected health information” is 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.)

(B)(Protected health information is confidential unless one of four statutory exceptions applies)

(C)(Information that does not identify an individual is not protected health information and may be released in summary, statistical, or aggregate form.)

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.)

State ex rel. McClearly v. Roberts, 88 Ohio St.3d 365 (2000) (Personal information of private citizens, obtained by a “public office,” reduced to writing and placed in record form and used by the public office in implementing some lawful regulatory policy, is not a “public record” as contemplated by R.C. 149.43)

State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 369 (2000) (The fundamental policy of R.C. 149.43 is to promote open government, not restrict it)

State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St. 3d 518 (2006) (Lead-contamination notices issued to property owners of units reported to be the residences of children whose blood tests indicated elevated lead levels are not protected health information. Even if notices were protected, public records law still requires disclosure.)

State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro Hous. Auth., 131 Ohio St. 3d 149 (2012) (Personal identifying information in lead-poisoning documents, such as 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 are not obtainable under the Public Records Act. However, the remainder of the completed forms is subject to disclosure under public records law.)

Board of Health’s Argument

BOH first asserts that the plain language of the “protected health information” statute unequivocally shields the requested records, and none of the statutory exceptions apply. The information contained within the records is private and not in a summary, statistical, or aggregate form. Furthermore, Lipson does not have consent from any affected individual.

Second, BOH argues that even letters of notice to landlords or property owners are exempt because the statute prevents documents that “could be used to reveal the identity of the individual.” In this context, “could” means all information that “might” or “may possibly” lead to an identification of an individual. Property and landlord information that is not redacted in the requested information could lead to an identification. As such, all information within the requested documents should be protected because Lipson’s only purpose in reviewing the documents is to ascertain the identity of an affected child. In a similar vein, BOH submits that the General Assembly purposely chose the word “could” to create a broad grant of confidentiality for protected health information.

Third, BOH describes the potential windfall effect the Eighth District’s decision creates. Based on this ruling, BOH must comply when a request is made for “non-protected” records of a person who has been diagnosed with any disease so long as the requestor does not ask for the actual medical records. Additionally, this holding directly contradicts McClearly by forcing BOH to supply sensitive information involving minors.

Finally, BOH argues that release of these records violates the constitutional right of privacy of the children involved, and is expressly contrary to legislative intent.

Lipson’s Argument

Lipson first asserts that public policy demands that public record requests be liberally construed in favor of the requestor. The overarching purpose of the Ohio Public Records Act is to shed light on the state government’s performance. Public records effectively give citizens the right to monitor the efficacy and conduct of the government. The Eighth District was correct in ruling on the side of disclosure, as it is an established principle within public records law.

Second, Lipson argues that government agencies have a duty to redact protected information and then produce the requested information. If a public record does contain information that is exempt, then the obligation to redact falls on the keeper of those records. Once the records are properly redacted, the redacted copies should be given to the requestor. Therefore, BOH must comply with the court’s order to redact protected information and then supply the documents to Lipson.

Third, Lipson submits that BOH is improperly invoking the shield created through the “protected health information” statute. Lipson interprets the statute as creating a two-part test that determines when a document is protected: 1) it must be determined whether the content of the documents describes an individual’s past, present, or future physical or mental health status, treatment, care, or purchase of health products; 2) whether the information reveals the identity of the individual or the information could be used to reveal identity. Lipson argues that the request fails on the first prong, as the requested documents do not contain protected health information. The documents only describe conditions concerning lead paint hazards in property and do not identify any of the potentially affected people. If a document does not contain protected health information, R.C. 3701.17 does not apply.

Finally Lipson argues that BOH has waived its privacy argument by failing to raise it in the lower courts.

Board of Health’s Proposed Proposition of Law

Information in the custody of a Board of Health or the Ohio Department of Health that either identifies an individual or could be used to ascertain that individual’s identity is exempt from disclosure under the public records act absent the individual consent.

Student Contributor: Austin LiPuma

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