Merit Decision: No Records that Lead to the Disclosure of Protected Health Information. Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group.

On February 18, 2016, the Supreme Court of Ohio handed down a merit decision in Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group,  2016-Ohio-556. In a unanimous opinion authored by Justice Pfeifer, the court held that the public records request made by the law firm was too broad, because it could lead to the disclosure of the identity of specific individuals and their protected health information. But information that doesn’t lead to such disclosures should be released. The case was argued May 19, 2015.

Case Background

In 2012, Michael O’Shea, of Lipson O’Shea Legal Group, made a public records request pursuant to R.C. 149.43 from the Cuyahoga County Board of Health (“BOH”), seeking  “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.”

After looking things over, the BOH decided it couldn’t turn over any of the information the firm wanted. The BOH sought a declaratory judgment in the common pleas court to determine its obligations, submitting 12 sample files for the trial court’s in camera review as representative examples of what the firm sought.  The BOH moved for summary judgment.  After review, the trial court determined that even if redacted, the records could be used to reveal the identities of individual children, and thus release was prohibited by state law.  The court thus granted the BOH’s motion for summary judgment.

In a unanimous decision, the Eighth District reversed the trial court’s grant of summary judgment to the BOH. 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 appeals court concluded that the BOH must examine each document, redact any protected health information, and release everything else.

Read the oral argument preview of the case here and the analysis of that argument here.

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.)

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.)

Issue

The issue in the case is whether the information sought by the law firm is covered under the Ohio Public Records Act.

Executive Summary

“The real problem in this case is the public records request itself. It seeks records specifically related to a person’s physical status or condition, ” wrote Justice Pfeifer. That information is not subject to disclosure.

Analysis

Ohio’s Public Records Act is “to promote open government, not restrict it,” and therefore should be liberally construed in favor of disclosure. But there are exceptions.

In this situation, there is an applicable statutory exception. R.C. 3701.17(B) prohibits the release of “protected health information,” which is further defined as information that “describes an individual’s past, present, or future physical or mental status or condition, receipt of treatment or care, or purchase of health products” when either of the following two conditions applies: (1) the information “reveals the identity of the individual who is the subject of the information” or (2) the information “could be used to reveal the identity of the individual who is the subject of the information.”

In this case, the court found that the request made by the law firm was inextricably linked to “protected health information.” Identifying the address of a home where a child had an elevated blood level can clearly be used to identify the afflicted child.

But the high court didn’t say, as the trial court had, that all of the information sought was protected. The law firm had stated in its brief that some documents it sought did not contain protected health information, such as lead hazard violation notices, risk-assessment reports, Health Department correspondence with landlords, and lead abatement certificates. The court chided the law firm for not requesting those documents, instead of those tied to homes where a minor child had an elevated blood level.

Action Taken

The case was sent back to the trial court to first review the sample files, and, if necessary, all other responsive information in the possession of the BOH to see what information, if any, could be released after any protected health information was redacted.

Case Syllabus

None

Concluding Observations

I predicted any victory for the law firm would be a Pyrrhic victory; student contributor Austin LiPuma predicted a narrow win for the firm. The records request was drafted in such a way that it inevitably included protected health information. During oral argument, counsel for the firm got into a cat-and-mouse game with the Chief about whether they wanted specific addresses. They clearly did, but didn’t get them. The Chief really pounded on this point for quite awhile during argument, noting that if the law firm got the address information, it would lead to information the statute bans from disclosure. And that is how it turned out.

I don’t envy the trial judge here, with the remand mandate.

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