What’s On Their Minds: 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.

“So your position is get out of our lives? We don’t have to deal with you and we don’t have to disclose anything?” Justice Pfeifer to the lawyer for the Board of Health.

On May 19, 2015, the Supreme Court of Ohio heard 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, not subject to release in a public records request.

Case Background

Among the responsibilities of the Cuyahoga County Board of Health (BOH) is the elimination of childhood lead paint poisoning. 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.” Lipson wanted the information to solicit business.

BOH determined the requested documents contained “protected health information” that would or could be used to identify particular individuals, and brought a declaratory judgment action to ascertain whether such records were exempt from release under Ohio’s Public Records Act. After an in camera review of representative samples of the requested documents, the trial court determined the records were exempt from release because they contained protected health information that would or could be used to reveal children’s identities, and granted summary judgment to the BOH.

In a unanimous decision, the Eighth District reversed the trial 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 (A) (“Protected health information” is information in any form 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 or (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)

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.)

State ex rel. Plunderbund Media v. Born, 2014-Ohio-3679 (“If a record does not meet the definition of a public record, or falls within one of the exceptions to the law, the records custodian has no obligation to disclose the document.”)

At Oral Argument

Arguing Counsel

Brian R. Gutkoski, Cuyahoga County Prosecutor’s Office, for Appellant, Cuyahoga County Board of Health

Ronald A. Annotico, Lipson O’Shea Legal Group, Rocky River, for Appellee, Lipson O’Shea Legal Group.

BOH’s Argument

R.C. 3701.17 broadly defines public health information as information in the hands of a board of health that either reveals or could reveal the identity of a person with a past, present or future health condition. The law firm here is asking that this confidentiality mandate be ignored in order to solicit clients for lead paint liability. This is a statute that is broadly protective of people’s health information; the General Assembly made that policy choice, and this court must respect that.  There is nothing in the requested records that is subject to disclosure, because all of it is protected health information, as defined in the statute. There is no requirement to redact documents that the General Assembly has stated are confidential.

This court has not yet construed this particular statute, which applies only to boards of health, and is more broadly protective of information than some others the court has construed. In this case the law firm clearly wants addresses so it can solicit business, but addresses absolutely can lead to identification of individuals with protected health information, and thus, those documents cannot be disclosed.  The appeals court said that landlord information and property address information should be turned over—but upon receipt of that information, the law firm can easily get the identity of the lead poisoned children.  The appeals court was wrong, and should be reversed.

Lipson’s Argument

The way this statute works is that first the court must first determine whether there is health information about a particular person in the information requested.  Then, and only then do we proceed to the next inquiry, which is whether that health information can be used to identify a particular person.  The law firm isn’t seeking any health information, because it knows it can’t. It seeks information about properties that have been subjected to lead testing by the department (and after a very sharp back and forth with Chief Justice O’Connor, counsel finally conceded the firm did want the addresses of the properties, and the names of the landlord or property owner). The law firm is entitled to a letter or notice to the property owner that doesn’t contain any health information about a child, but just gives notice of lead violations.  Case law interpreting public records requests gives an expansive reading to such requests to satisfy the public policy of openness in government.

What Was On Their Minds

Can or Must The Requested Records Be Meaningfully Redacted?

Is nothing in the requested records subject to disclosure, asked Justice O’Neill? If there is any health information in the record, the Lipson firm gets nothing? Shouldn’t the parties try and work this out? Isn’t the law firm entitled to something here?

What information did the BOH agree to disclose, asked Justice Pfeifer? Did the trial court make any attempt at redacting what isn’t subject to disclosure?

Couldn’t addresses be redacted from the records sought, asked Justice O’Donnell?

Is it the BOH’s position that if there is any information at all that could identify the health of a child, it won’t give any of the document, asked Justice French? (answer: yes) Is there a distinction between documents and information?

Chief Justice O’Connor got into a very sharp exchange with Lipson’s lawyer about whether the firm wanted addresses—he first said no, but then conceded the firm did. She then asked if once the firm got the address, it wanted to know the people at that address.  Later, this exchange occurred:

The Chief:

“If the health department said we are going to give you these records, we are going to redact the address, the names, you will get the information that on June 1 2010 there was lead discovered. Are you going to make the trip down to the health department to pick those records up?”

Lipson’s Counsel:

“Granted they wouldn’t be of much help to us without addresses”

The Chief really pounded on this point for quite awhile, noting that if the law firm got the address information, it would lead to information the statute bans from disclosure.

The Statute

Isn’t R.C. 3701.17 more protective with regard to the information contained in these health documents, asked Chief Justice O’Connor?  Isn’t this statute by design, policy and content, more limiting and more restrictive (than R.C. 149.43) as to what can be released as a public record?

Must the court determine whether the information the law firm seeks from the health department falls under the protection of 3701.17, asked Justice O’Donnell?

Previous Records Requests

Hasn’t the court already held that health records can be reviewed so long as identifying information is redacted, asked Chief Justice O’Connor? What was redacted in the Cuyahoga Metropolitan Housing case? Is there any crossover between these records? Which is the bigger pool of data? Wouldn’t the BOH records include non CMHA housing?

Protected Health Information

Was the Lipson seeking any health information, asked Chief Justice O’Connor? (answer:no)

Is there any information that would not lead to the identification of an individual on those forms, asked Justice O’Donnell?

Justice French read from one of the documents, noting that observations about paint chips flaking on windowsills had nothing to do with any individual child’s health information. Later she asked if disclosing the name of a parent would disclose health information about the child.

Justice O’Neill asked Lipson’s counsel if he understood that once the firm had the address, it wouldn’t be very difficult to find the people living at that address, and thus not difficult to lead to the health records or condition of those people. Following up on this, and in a key comment of the day, Justice O’Donnell commented that R.C. 3701.17 defines protected health information to include information that could be used to reveal the identity of an individual who is the subject of the information, noting that what was troubling him was the fact that the address could be used to identify such an individual. So there is an inconsistency with what the statute says and what you want, he said to Lipson’s counsel, noting that by definition, an address could lead to protected health information.

Is a document from the board of health that 123 Elm Street is a house that has a lead problem a health record, asked Justice O’Neill?

Privacy

Isn’t the point of the statute to protect the privacy of the individual, and to protect wholesale fishing expeditions, asked Justice Lanzinger, commenting that if the law firm had individual consents, it would be an entirely different matter.  

When it comes to people’s privacy rights over their health information, those who have that information are held to a high standard to make sure it doesn’t creep out the door, commented Justice Pfeifer.

Other Options for the Law Firm

Could the law firm prepare a draft request for the BOH to notify the individuals that the information has been requested, and asking if they want to waive their right to confidentiality, asked Justice Pfeifer?  Or advertise to those injured?

How it Looks From the Bleachers

To Professor Bettman

Whew! The justices were brutal to both counsel—Justice Pfeifer, especially, to the lawyer for the BOH and Chief Justice O’Connor, especially, to the lawyer for the Lipson firm.

I think if Lipson wins, which is far from a sure thing, it’s going to be a Pyhrric victory-documents with nothing much more than “Board of Health” at the top, and maybe, as Justice French put it looking at one of the documents, comments like “flaking paint chips in the windowsill,” but without any identifying addresses.  As several justices noted, once Lipson gets an address—which is what it wants—inevitably that is going to lead to personal identifying health information, which the statute clearly forbids. According to the trial court, every type of document requested would include the address of the affected property, which surely is the key to the forbidden kingdom here.

The BOH may command a majority for its position that R.C. 3701.17, applicable only to boards of health, does provide a broader grant of confidentiality than a basic public records request, and that nothing requested here is disclosable.   The Chief, and Justices O’Donnell and Lanzinger seemed ready to buy that position, which would mean a reversal of the appeals court decision.

Justice Pfeifer, and to a lesser extent Justice O’Neill, arevery big on open records and disclosure, and seemed more inclined to uphold the court of appeals decision.  Pfeifer was downright hostile to the lawyer for the BOH, even down to telling him he was mispronouncing Pfeifer’s name (which is why I always caution lawyers arguing at the court not to call justices by name.)  And in rebuttal, when the BOH lawyer suggested that the BOH didn’t want to release the records because it didn’t want to get sued, Pfeifer went a bit ballistic, calling that a lame excuse, commenting “your job is to look at the statute and reasonably apply it and not worry about some bogeyman lawyer hiding behind some bush.” Ouch!

Justice French was hard to read—I wasn’t sure which way she was going or her point, exactly, with her questions and distinction between documents and information.

To Student Contributor Austin LiPuma

Immediately, the BOH asserted that there are limitations to public records law. The first few questions contemplated why BOH didn’t attempt to “split the baby” and redact the parts of the documents that were protected health information as designated by the appellate court.  Justice O’Neill and Justice Pfeifer were really relentless at times and it became clear that they both believed this issue was already very much decided. BOH’s binary view that documents are either protected or not was not well received by the court. By the end of its argument, it appeared that BOH was fighting an uphill battle, as the court did not seem willing to focus on the privacy expanding language contained in R.C. 3701.17.

Lipson immediately hung its hat on public records policy, to which Chief Justice O’Connor quickly countered with the fundamental right to privacy. The court seemed more willing to acknowledge the greater protection granted by R.C. 3701.17 during Lipson’s argument than it had been during the BOH argument.  The informational chain reaction is clear—the unprotected addresses lead to the names of the property owners which lead to the discovery of the victims of lead poisoning. As Lipson’s lawyer tacitly acknowledged, the purpose behind attaining these addresses is to solicit business from those who were affected by lead poisoning. Almost every justice noted that this information is exactly the sort of private information considered by the General Assembly when the statute was promulgated. Towards the end of the argument, when all seemed bleak for Lipson, Justice Pfeifer was able to spin Lipson’s self-serving purpose in attaining the information by suggesting that Lipson wanted to better the lives of people who have been exposed to such a dangerous toxin.

How does it look? Frankly, it didn’t look great for either party. Ultimately, I think this is a narrow win for Lipson and the appellate court’s decision will be affirmed. I doubt that the court is willing to issue a sweeping exemption for boards of health based on its own public records jurisprudence.

 

 

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