The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
The Ohio Supreme Court ruled Wednesday that the names and addresses in death record databases maintained by state and local departments are not subject to open records law.
A 5-2 court majority found that the state’s Public Records Act “does not require public offices to release records when release is ‘prohibited by state or federal law,’ and this exception applies to records that contain protected health information,” the court’s Wednesday decision read, upholding an appellate court’s ruling in the case.
“A decedent’s name and address, when combined with information regarding his or her cause of death, clearly falls within the unambiguous definition of ‘protected health information’ … because the combined information reveals the identity of the decedent and the decedent’s past physical-health status,” Justice Patrick Fischer wrote for the majority.
The case came before the court after former Columbus Dispatch Reporter Randy Ludlow filed a public records request with the Ohio Department of Health (ODH) asking for a spreadsheet of data from the Electronic Death Reporting System regarding deaths caused by the COVID-19 pandemic.
State-licensed nursing homes often don’t disclose the names of residents who’ve died, so anyone investigating deaths at nursing homes — whether by COVID or negligence or something else they might be looking into — can use state and local database death records to crosscheck names and addresses. This ruling will prevent that going forward.
In May of 2020, the ODH denied Ludlow’s records request, saying the records did not exist, and that “the data EDRS contains is not a record that documents the functions or operations of the agency,” according to court records.
But a press secretary for the agency later reversed course, saying a copy of the “death certificate database” would be provided, though the records did not include names, addresses, or birth dates. The ODH said the information was exempt from public records as “personal information.”
Ludlow submitted another request in January 2021 for “a copy of the Electronic Death Reporting System database – in digital spreadsheet form – of all death certificates delivered to the department from March 1, 2020, to Jan. 26, 2021, by all local health departments in the state.”
“Ludlow’s final request reiterated that decedents’ names and addresses in the death certificate databases are public records and again requested their release,” court documents regarding the appeal explained.
The Ohio Court of Claims, to which Ludlow initially took his complaint, ruled that the state department of health should “use its existing software, input search criteria and produce a report with information that was readily available,” also ruling that death certificate data “is public information” under state law.
The ODH appealed to the Tenth District Court of Appeals, who found that “the definition of ‘protected health information’ extended to cause of death information contained on an Ohio death certificate.”
Ludlow’s appeal to the Ohio Supreme Court pointed to the fact that death information is public record when contained in an autopsy under state laws regulating the practice, and noted that “the Court of Claims recognized, and the Tenth District (Court of Appeals) did not dispute, that any information contained in a certified Ohio death certificate is public record within the meaning of (Ohio Revised Code) 149.43, including decedents’ personal identifying information, such as their birth date and name.”
But the state’s highest court pushed back on that argument, saying while the appellate court held that a cause of death can be disclosed in a certified copy of a death certificate based on another part of state law, despite being considered protected health information, that “does not mean that information is not otherwise prohibited from release for the purpose of (the Public Records Act).”
The state supreme court disagreed with Ludlow’s argument to the court that information contained on an Ohio death certificate, specifically the cause of death, is not protected health information “so as to make such information exempt from disclosure under state law for purposes of the Ohio Public Records Act.”
The court found that the ODH included cause-of-death information in the spreadsheet provided to Ludlow, but only withheld names and addresses, so the justices called into question the argument that the case was about protected health information.
“Therefore, the real issue in this case is whether the names and addresses of the decedents, when combined with information regarding their causes of death, are protected health information under (Ohio Revised Code) 3701.17,” Fischer wrote in the majority opinion. “Based on the plain, unambiguous language of the statute, they are.”
Chief Justice Sharon Kennedy signed on to Fischer’s majority opinion, along with justices Patrick DeWine, Melody Stewart and Joseph Deters.
Justice Jennifer Brunner formed the dissenting opinion, along with Justice Michael Donnelly.
In Brunner’s dissent, she said the “fundamental policy” of Ohio’s Public Records Act “is to promote open government, not to restrict it.”
“There is no legislative uncertainty that death certificates, even when they reveal the names and other identifying information of deceased individuals, are public records that are open to public access,” Brunner wrote.
She further argued that the ODH is a state agency explicitly open to public records requests under state law, and “nothing the General Assembly has done to create exceptions to the general principle that death certificates are public records” shows her that “protected health information” can be restricted under the laws mentioned in the case. She argued that the majority’s interpretation of the laws “as a restriction on the disclosure of information contained in death certificates” in fact “unnecessarily and inaccurately interprets (the laws) beyond their plain meanings.”
“This is not our role as the judiciary, and changing the meaning of a law causes us to join the ranks of legislative lawmakers, outside of our judicial powers,” according to Brunner.
