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Ohio Supreme Court: Database collection of death information not public record

Dan Trevas, Court News Ohio

A statewide database of dead Ohioans with the names and addresses associated with the causes of death is not available to the public via a public records request because it contains “protected health information,” the Supreme Court of Ohio ruled Wednesday.

In a 5-2 decision, the Supreme Court rejected the claim of former Columbus Dispatch reporter Randy Ludlow, who sought the cause-of-death information from the Ohio Department of Health (ODH) during the onset of the COVID-19 pandemic. The department provided Ludlow with requested spreadsheets with vital information from death certificates, including sex, age, and cause of death, but not the names and addresses of those who died.

Writing for the Court majority, Justice Patrick F. Fischer stated the department correctly determined that the names and addresses, when combined with the other medical information, would constitute protected health information. Under R.C. 3701.17, the department is prohibited from releasing that information.

The Court disagreed with Ludlow’s claim that R.C. 3701.17 protects the information of the living and that the health information of deceased Ohioans is not protected.

“However, we see no reason to limit the definition of ‘individual’ to ‘living individual’ when the statute does not make that distinction,” Justice Fischer wrote.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Melody Stewart and Joseph T. Deters joined Justice Fischer’s opinion.

In a dissenting opinion, Justice Jennifer Brunner wrote that information provided by local health departments to ODH’s database must be a public record, because under another state law, anyone can obtain the entire death record by visiting the local vital records department.

“In short, under R.C. 3705.231, all that is needed to access and copy a death record that presumably contains information regarding the deceased individual’s name, address, and cause of death – information that the majority opinion asserts is protected health information – is to ask and it shall be permitted,” she wrote.

Justice Michael P. Donnelly joined Justice Brunner’s opinion.

ODH operates the Electronic Death Registration System (EDRS) to maintain death records in Ohio. The department receives data about deaths from funeral homes, coroners and local health departments. The information is entered into EDRS and used to create and print death certificates.

In April 2020, Ludlow sent a public records request to the department requesting a digital spreadsheet from the EDRS database containing information from all death certificates delivered from March 1, 2020, through the date of his request. The department initially denied the request but, in October 2020, provided Ludlow with a spreadsheet that included the sex, age, race, birth date and marital status of all the deceased and the date, time, place, manner and cause of death.

The spreadsheet did not include the names and addresses of the dead, which the department claimed were “protected health information” under R.C. 3701.17. That statute defines “protected health information” to include information that reveals or could be used to reveal an individual's identity and describes their past, present or future physical or mental health status or condition.

The department stated that the names and addresses, when combined with the information regarding cause of death, would constitute protected health information. The Ohio Public Records Act, R.C. 149.43, prohibits providing records when release is “prohibited by state or federal law.” Since the state is prohibited from releasing protected health information, the department maintained that the data, as requested by Ludlow, could not be released.

Ludlow submitted a second request in January 2021 for an EDRS spreadsheet of all death certificates delivered to the department between March 1, 2020, and January 26, 2021. The department sent the same information that it sent in response to the first request, omitting the names and addresses.

Ludlow filed a complaint against the department with the Ohio Court of Claims. The Court of Claims determined that R.C. 3705.23(A) expressly makes death certificates public information and requires the director of health to provide a certified copy of a death certificate when a signed application and a fee accompany the request. The court ordered the department to provide Ludlow with the information.

ODH appealed to the Tenth District Court of Appeals, which reversed the Court of Claims. Ludlow appealed the decision to the Supreme Court, which agreed to hear the case.

Justice Fischer explained that the Public Records Act requires public offices to make copies of public records available to anyone upon request within a reasonable time. However, the law includes many exceptions to the definition of a “public record,” including R.C. 3701.17, which states that protected health information records cannot be released.

The majority opinion stated that, generally, cause-of-death information will reveal a person’s past physical health status or condition “because that information reveals what the person may have been suffering from when he or she died.” If the name and address are combined with the cause of death, that reveals the identity of an individual in addition to their past health status or condition, which constitutes protected health information, the Court concluded.

The opinion noted that under R.C. 3710.17(C), the health department can release vital information in a “summary, statistical, or aggregate form” if it does not reveal the identities of any individuals.

“Therefore, the causes of death, as released by ODH to Ludlow, are public records, but the names and addresses of the decedents, which would identify those decedents, are not,” the opinion stated.

Ludlow also claimed R.C. 3710.17 only protects the information of “living individuals” because a deceased individual cannot consent to allow for release of the information. The Court explained that in State ex rel. Cable News Network Inc. v. Bellbrook-Sugarcreek Local Schools (2020), regarding releasing the public school district records of a former student, the Court found there is no exception permitting the release of records without the student’s consent, even after the former student died.

“And like in Cable News Network, we hold that just because R.C. 3701.17(B) allows an individual to grant permission for the release of his or her personal health information, it does not mean that the protection of that information ceases upon the individual’s death,” the Court stated.

The Court majority noted that other laws allow access to individual death records. R.C. 3705.231 requires local registrars to enable individuals to photograph or copy death records. R.C. 3705.23 makes certified death certificates available to a requester who provides the deceased’s name, date of birth, and other details. But neither of the laws demand that ODH “release identifying cause-of-death information en masse when someone files a public-records request,” the Court concluded.

“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,” Justice Brunner wrote in her dissent.

Because two state laws allow for copying and releasing death certificates, nothing in R.C. 3701.17 indicates the information on a death certificate is not a public record, the dissent stated. The health department’s interpretation creates a conflict with the laws that allow the death records to be released, the dissent maintained.

Justice Brunner noted the General Assembly has not defined “individual.” But in another case, Centerville v. Knab(2020), the Court defined a “natural person” as the “living body of a human being.” The health information of an “individual” should only apply to a living person, the dissent stated.

“Deceased individuals no longer have health information,” the dissent stated. “Interpreting R.C. 3701.17 in a manner that the majority does is an unnecessary and unwarranted legislative interpretation that does not need to happen.”

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