Ludlow v. Ohio Dept. of Health

[Cite as Ludlow v. Ohio Dept. of Health, 2021-Ohio-2651.]

RANDY LUDLOW Case No. 2021-00040PQ

Requester Special Master Jeff Clark

v. REPORT AND RECOMMENDATION

OHIO DEPARTMENT OF HEALTH

Respondent

{¶1} The Ohio Public Records Act (PRA) requires copies of public records to be

made available to any person upon request. The state policy underlying the PRA is that

open government serves the public interest and our democratic system. To that end, the

public records statute must be construed liberally in favor of broad access, with any

doubt resolved in favor of disclosure of public records. State ex rel. Rogers v. Dept. of

Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6. This

action is filed under R.C. 2743.75, which provides an expeditious and economical

procedure to enforce the PRA in the Court of Claims.

Request for Ohio Death Data Records

{¶2} Beginning on April 20, 2020, requester Randy Ludlow, then a reporter for

the Columbus Dispatch, made public records requests to respondent Ohio Department

of Health (ODH) for first all and then selected portions of the ODH Electronic Death

Reporting System (EDRS) database. ODH initially denied the requests, but later

downloaded and delivered all selected EDRS data except the names and addresses of

decedents. (Complaint at 3-19.) On January 26, 2021, Ludlow made the final,

comprehensive request at issue in this action:

Please provide 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.

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We acknowledge that the department has provided a copy of the database

-- except for names and addresses which it insists are exempt from

release -- and file this request to update the dates for which the database

is sought.

We continue to contend that the names and addresses in the death

certificate database are public record and again seek their release.

(Id. at 20.) On January 28, 2021, Ludlow filed a complaint pursuant to R.C. 2743.75

alleging denial of access to public records in violation of R.C. 149.43(B). Following

unsuccessful mediation, ODH filed a response to requester’s complaint and motion to

dismiss (Response) on April 23, 2021. On May 10, 2021, Ludlow filed a reply. On

May 17, 2021, ODH filed a sur-reply.

Motion to Dismiss

{¶3} To dismiss a complaint for failure to state a claim upon which relief can be

granted, it must appear beyond doubt that the claimant can prove no set of facts

warranting relief after all factual allegations of the complaint are presumed true and all

reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co.

v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set

of facts consistent with the complaint that would allow the claimant to recover, dismissal

for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84,

2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.

{¶4} ODH argues the complaint fails to state a claim because, 1) the request is

for an entire database, 2) the request requires a search, and 3) the request seeks

information exempt from disclosure under R.C. 3701.17(A)(2). On review, none of these

defenses is conclusively shown on the face of the complaint and attachments.

Moreover, as the matter is now fully briefed these arguments are subsumed in ODH’s

defense on the merits. It is therefore recommended that that the motion to dismiss be

denied.

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Initial Burden of Proof

{¶5} A requester must establish a public records violation by clear and convincing

evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). At

the outset, the requester bears the burden to show that he seeks identifiable public

records pursuant to R.C. 149.43(B)(1). Welsh-Huggins v. Jefferson Cty. Prosecutor’s

Office, Slip Opinion No. 2020-Ohio-5371, ¶ 33.

The Request Identifies Existing Records

{¶6} Each death in Ohio is documented with a local registrar of vital statistics.

R.C. 3705.16(B). The local registrar, attending physician or coroner, and others

complete the death certificate data using electronic or paper death certificate forms

prescribed by ODH. R.C. 3705.08(A) and (D); R.C. 3705.16(C); OAC 3701-5-02(A)(2)

Certificate of Death (Appendix B, dated 6/23/2016). (See Response, Sorrell Aff. ¶ 7 –

Exh. A at ¶ 7.) The local registrar obtains a certificate number from the state Electronic

Death Registration System (EDRS) and transmits the completed death certificate to the

ODH office of vital statistics. R.C. 3705.07(A). ODH verifies the information and

certificates received from the local registrar, secures omitted information as necessary,

and maintains the completed death certificate data in its records management system.

R.C. 3705.02, 3705.07(A). As ODH’s record copy of Ohio death certificates, the EDRS

database is the electronic equivalent of a file cabinet of physical death certificates.

{¶7} Any person may obtain a copy of any death certificate from the EDRS,

which ODH prints out and certifies. R.C. 3705.23(A)(1); R.C. 3705.01(O). There is no

limitation on who may obtain death certificates, or for what purpose. ODH routinely uses

EDRS data to create “a monthly public record (the Deceased Ohioans File).” (Complaint

at 7-8.) ODH also publishes leading causes of death and other mortality statistics as “an

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important component of public health surveillance and assessment.”1 The electronic

death data received, checked, maintained, and used to perform and document the

functions, operations, and other activities of ODH thereby “exists” as a record of the

office. R.C. 149.011(G); See State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga

Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 38; State

ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886

N.E.2d 206, ¶ 7.

{¶8} A data dictionary or Death Data File layout, labeled the “Monthly statistical

mortality file description” was provided to Ludlow to inform his selection of available

death certificate .cvs columns.2 (Response, Sorrell Aff. Exh. B.) The EDRS is

programmed with a Reports function, supported by a Reports Wizard. (Sorrell Aff. –

Exh. G – EDRS Menu Screen Shots.) EDRS is also programmed with a Batch > Export

function used by, among others, funeral directors to download data sorted by date and

available fields. (Id., Exh. D, p. 50-60 and Exh. G.) ODH can and has exported multiple

categories of the EDRS database, up to and including the full Death Data file set.

(Response, Sorrell Aff. – Exh. A at ¶ 4.)3 At least two department databases – the

EDRS itself and the EnterpriseDataWarehouseSecure Secure Mortality Module – are

programmed to pull and export data from the EDRS Death Data file. The latter can

export any or all Death Data File content in various formats. (Response at 3.) Individual

columns can be redacted. (Complaint at 7.) For more detail on the capabilities of ODH

database software and relevant law, see Miller v. Ohio Dept. of Health, Ct. of Cl. No.

2020-00618PQ, 2021-Ohio-996 at ¶ 10-20.

1 https://odh.ohio.gov/wps/portal/gov/odh/explore-data-and-stats/published-reports/data-and-

stats-mortality-leading-cause-reports (Accessed June 3, 2021.) (Complaint at 6-7.)

2 The Comma Separated Values (CSV) format uses commas to separate alphanumerical data

fields. CSV files are often used for exchanging data between different applications and formats, such as

database and spreadsheet programs. https://en.wikipedia.org/wiki/Comma-separated_values (Accessed

June 7, 2021.)

3 ODH refers to the use of database output functions as “creating a customized report.” It

provides no evidence that using these functions requires adding new coding or programming to the

existing software. See Miller at ¶ 13-17.

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{¶9} ODH thus possesses the death certificate data, the office software to

download it as requested, and experience in performing such downloads. The special

master finds this is clear and convincing evidence that Ludlow requested an existing

ODH record.

The Request Does Not Require a “Search” Through the Database

{¶10} ODH is fully capable of and practiced in exporting data from the EDRS.

Nevertheless, it argues

Further, the Department is not required to search the database to locate

records that meet specific criteria. State ex rel. Shaughnessy v. City of

Cleveland 149 Ohio St.3d 612, 614-615, 76 N.E 3d 1171, 1175 (2016).

(Response at 5.) Retrieving reasonably identified records from where they are

maintained is the statutory duty of every public office under the Public Records Act.

R.C. 149.43(B)(2). Straightforward retrieval of records does not constitute a search or

research by the office. Instead, “to constitute improper research, a record request must

require the government agency to either search through voluminous documents for

those that contain certain information or to create a new document by searching for and

compiling information from existing records.” (Citations omitted.) State ex rel. Carr v.

London Corr. Inst., 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 22.

{¶11} The Shaughnessy case relied on by ODH involved complex requests for a

police department to, e.g., “search its database for reports that involved (1) incidents of

“aggravated assaults” or “assaults,” (2) occurring within a specific geographical location,

(3) with victims who sought medical care at a hospital, but (4) who were not victims of

domestic violence.” Shaughnessy at ¶ 10. The Court found this required the city to

engage in multiple search, evaluation and culling steps rather than clearly identifying the

specific reports sought. Id. at ¶ 4, 11, 18, 20, and 22. This bears no resemblance to

Ludlow’s straightforward request for all database fields within a defined time period.

{¶12} ODH has provided Ludlow with various datasets from the EDRS in the

past. (Complaint at 13-20; Response at 2-4, 7-8.) ODH’s previous disclosure of EDRS

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content does not estop the office from asserting any applicable public records exception

going forward. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160,

2005-Ohio-4384, 833 N.E.2d 274, ¶ 38. However, it does establish that existing ODH

software can export the requested records using existing programming.

{¶13} Public records law requires production of existing records that are already

compiled in export-capable databases.

The Public Records Law, R.C. 149.43, does not exempt compilations of

information contained in public records and does not require members of

the public to exhaust their energy and ingenuity to gather information

which is already compiled and organized in a document created by public

officials.

State ex rel. Post, 38 Ohio St.3d 170, 527 N.E.2d 1230 (1988).

Similarly, a public agency should not be permitted to require the public to

exhaust massive amounts of time and resources in order to replicate the

value added to the public records through the creation and storage on

tape of a data base containing such records.

State ex rel. Margolius v. Cleveland, 62 Ohio St.3d 456, 460, 584 N.E.2d 665

(1992). With respect to whether requested records “exist” in a computer system:

We hold that the clerk could not be required to create a new “document”

by compiling material to facilitate review of the public records. Conversely,

if the clerk’s computer were already programmed to produce the desired

printout, the “document” would already exist for the purpose of an R.C.

149.43 request.

State ex rel. Scanlon v. Deters, 45 Ohio St.3d 376, 379, 544 N.E.2d 680 (1989). Accord

State ex rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 274-275, 695

N.E.2d 256 (1998) (“In order to create the requested records, the board would have had

to reprogram its computer system.”)

{¶14} Together, the evidence of EDRS menu options, ODH descriptions of EDRS

and EnterpriseDatawarehouseSecure output functions, the Death Data File Layout,

multiple databases accessing all EDRS data, multi-format export capability, and

examples of previous death data output are clear and convincing evidence that ODH

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database systems have produced such output for requesters in the past and remain

capable of producing Ludlow’s requested output. The special master finds that

production of records in response to Ludlow’s request does not require ODH to

reprogram its computer system or otherwise perform a search or research.

This Request for Duplication of a Database is not Overly Broad

{¶15} ODH did not deny Ludlow’s request for a time period of the entire EDRS as

overly broad in its correspondence (Complaint at 3-12), asserting only during litigation

that “Mr. Ludlow’s request for the entire computer file of death data is an overbroad

public records request.”4 (Response at 5.). A public official may not oppose a request as

overbroad for the first time in litigation, as this would enable the official to avoid his duty

to provide the requester with an opportunity to revise the request by informing him of the

manner in which records are maintained and accessed by the public office. State ex rel.

Summers v. Fox, Slip Opinion No. 2020-Ohio-5585, ¶ 73-74. Accordingly, the special

master finds that ODH has waived the defense of overbreadth.

{¶16} Even were the defense properly raised, a public official may not rely on the

bare assertion of overbreadth without offering any support. Id. at ¶ 84. ODH provides

little argument and no evidence that Ludlow’s request is overly broad. ODH immediately

recognized the EDRS as the repository of the requested records and provided Ludlow

with an EDRS data dictionary to further inform his request. (Complaint at 13.) Ludlow’s

selection of all EDRS data fields for an eleven-month date range is clearly defined,

discrete in scope, and thus proper under the Public Records Act. See State ex rel. Data

Trace Info. Servs., L.L.C. v. Cuyahoga County Fiscal Officer, 131 Ohio St.3d 255, 2012-

Ohio-753, 963 N.E.2d 1288, ¶ 9, 64-66; State ex rel. Gambill v. Opperman, 135 Ohio

St.3d 298, 2013-Ohio-761, 986 N.E.2d 931, ¶ 10, 17-20; State ex rel. Cincinnati

Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 7-8;

4 To be clear, Ludlow’s request does not seek the entire EDRS database but only data from

March 1, 2020, to Jan. 26, 2021.

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State ex rel. Margolius v. Cleveland, 62 Ohio St.3d 456, 459, 584 N.E.2d 665 (1992);

Speros v. Secy. of State, Ct. of Cl. No. 2017-00389PQ, 2017-Ohio-8453, ¶ 8. The

special master finds that Ludlow’s request “reasonably identif[ied] what public records

are being requested” and is not overly broad. R.C. 149.43(B)(2).

Burden of Proof in Asserting Public Records Exceptions

{¶17} The burden to establish a claimed exception rests on the public office.

State ex rel. Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, Slip Opinion No.

2020-Ohio-5371, ¶ 35. Exceptions to disclosure are strictly construed against the public-

records custodian. State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545,

2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. A custodian does not meet this burden if it has

not proven that the requested records fall squarely within the exception. State ex ref.

Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d

206, paragraph two of the syllabus. Any doubt should be resolved in favor of disclosure

of public records. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637

N.E.2d 911 (1994).

R.C. 3701.17 Does Not Apply to Death Certificate Data Made

Expressly Public by R.C. 3705.23(A)5

{¶18} In R.C. Chapter 3701, applicable to ODH generally, R.C. 3701.17 provides

in pertinent part:

(A) As used in this section:

***

(2) “Protected health information” means 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:

For an expanded version of this section, see Miller v. Ohio Dept. of Health, Ct. of Cl. No. 2020-

5

00618PQ, 2021-Ohio-996 at ¶ 24-30.

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(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 reported to or obtained by the director of

health, the department of health, or a board of health of a city or general

health district is confidential and shall not be released without the written

consent of the individual who is the subject of the information * * *

ODH claims that R.C. R.C. 3701.17 prohibits release of protected health information

from death certificate data. However, even assuming arguendo that the cause of death

reported in a death certificate is information describing an identified individual’s past

physical status or condition, ODH cites no case law or even ODH policy applying R.C.

3701.17 to death certificates or their contents. What little case law exists for R.C.

3701.17 involves its application to health agency records of living individuals, e.g., Bd.

of Health v. Lipson O’Shea Legal Group, 2013-Ohio-5736, 6 N.E.3d 631 (8th Dist.),

affirmed by Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group, 145 Ohio St.3d

446, 2016-Ohio-556, 50 N.E.3d 499. Indeed, if R.C. 3701.17 did apply squarely to death

certificate contents then ODH and local registrars have been violating the statute each

time they release a certified death certificate pursuant to R.C. 3705.23(A). Consistent

with this history of non-application, there is no evidence that ODH or local registrars

have been redacting cause of death when they produce certified death certificates, or

that they have ever been sued for failure to do so.

{¶19} Further, ODH’s emergent claim that any content of statutorily public death

certificates is subject to a general personal health information statute is barred by the

“well-settled principle of statutory construction that ‘when two statutes, one general and

the other special, cover the same subject matter, the special provision is to be

construed as an exception to the general statute which might otherwise apply.’” State ex

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rel. Slagle v. Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, ¶ 14, quoting

State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities, 68 Ohio St.3d 426, 429,

627 N.E.2d 993. See also R.C. 1.51. The General Assembly has preempted application

of exceptions that might otherwise apply to death certificate data by mandating the

public disclosure of death certificates. R.C. 3705.23. Death certificates are prepared on

a prescribed form, R.C. 3705.16(C), O.A.C. 3701-5-02(A)(2) Certificate of death

(Appendix B); O.A.C. 3701-5-02(B)(1) to (3). One required item is “28. Part I. Enter the

disease, injuries, or complications that caused the death.” Copies of death certificates

can be obtained from both ODH and local registrars, and are utilized by probate courts,

cemeteries, funeral directors, and commercial lenders,6 in addition to their unconditional

release to any person who requests a certified copy. Every decedent’s cause of death is

a personally identified datum contained in a document that is statutorily required to be

disclosed to the public. A decedent’s cause of death is thus public information.

{¶20} The statute mandating release of death certificates places no restriction on

further dissemination of their contents. Rather, the General Assembly anticipates

dissemination and use of death certificate content by accrediting a certified copy as

“prima facie evidence of the facts stated in it in all courts and places.” R.C.

3705.23(A)(3). See Perez v. Cleveland, 66 Ohio St.3d 397, 399, 613 N.E.2d 199 (1993)

(referencing cause of death “as declared in the death certificate, which is indisputably a

public record”). Records thus established as public cannot be made confidential merely

by placing them in a different location. State ex rel. Cincinnati Enquirer v. Hamilton Cty.,

75 Ohio St.3d 374, 378, 662 N.E.2d 334 (1996) (9-1-1 call recordings are public when

made and are not susceptible to general exceptions when later aggregated by law

enforcement investigators, prosecutors, or grand juries.) “Once clothed with the public

records cloak, the records cannot be defrocked of their status.” Id. Accord State ex rel.

Dispatch Printing Co. v. Morrow Cty. Prosecutor’s Office, 105 Ohio St.3d 172, 2005-

6 See R.C. 2105.35, R.C. 3705.17, and R.C. 1321.66.

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Ohio-685, 824 N.E.2d 64, ¶ 9-14; State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312,

316, 750 N.E.2d 156 (2001). See also 1996 Ohio Op. Atty. Gen. No. 034 (where county

recorder receives and publicly records instruments in accordance with statutory

directives, social security numbers included in the records are not subject to the general

exemption that would otherwise apply). The requirement that death certificates be

recorded, printed out on demand, and serve as evidence of their contents “in all courts

and places” establishes an expectation that the cause of death associated with every

decedent “will be recorded and disclosed to the public.” See Enquirer v. Hamilton Cty. at

378. The requested death data is thus expressly and indisputably “public.”

{¶21} ODH cites a contrary conclusion in Patrick Walsh v. Ohio Department of

Health et al., Franklin C.P. No. 20 CV 006561, *8 (February 26, 2021), appeal pending

in 10th Dist. Franklin No. 21 AP 109. (Response at 5-7.) However, the decision in Walsh

did not involve all the arguments and evidence addressed in this action. On April 9,

2021, consistent with this court’s decision in a previous case, the special master denied

ODH’s motion to stay pending the appellate outcome in Walsh. See WCPO-TV v. Ohio

Dept. of Health, Ct. of Cl. No. 2020-00513PQ, 2021-Ohio-1566, ¶ 17-19. ODH’s citation

to McGlone v. Centrus Energy Corp., S.D.Ohio No. 2:19-cv-2196, 2020 U.S. Dist.

LEXIS 138449, at *4-5 (Aug. 4, 2020) (Response at 7) is inapposite because that case

did not involve a statute affirmatively making the requested data public, like R.C.

3705.23(A).

{¶22} Despite the public nature of certified printed death certificates, the General

Assembly could have enacted an exemption shielding the electronic death data

compilations from the public. For example, records of criminal arrests and convictions

are statutorily public in the hands of law enforcement agencies and courts, but are

subject to an exception from public records disclosure where gathered and maintained

in the Ohio Bureau of Criminal Identification and Investigation database. R.C.

109.57(D)(1)(a). The General Assembly crafted a similar exception for “medical records,

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law enforcement investigative records, coroner investigative records, laboratory reports,

and other records concerning a decedent” aggregated by ODH in the Violent Death

Reporting System, even though some of these could be public at their source. However,

there is no statutory provision to treat electronically compiled death certificate data any

differently from the same data when printed out as a certificate from the same database.

{¶23} Under the facts and circumstances of this case, the special master

concludes that ODH has not met its burden to prove that the withheld death data falls

squarely within the exception contained in R.C. 3701.17.

Conclusion

{¶24} The special master recommends the court order respondent to provide

requester with the requested records. It is further recommended the court order that

requester is entitled to recover from respondent the amount of the filing fee of twenty-

five dollars and any other costs associated with the action that he has incurred. It is

recommended costs be assessed to respondent.

{¶25} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection

with the clerk of the Court of Claims of Ohio within seven (7) business days after

receiving this report and recommendation. Any objection shall be specific and state with

particularity all grounds for the objection. A party shall not assign as error on appeal the

court’s adoption of any factual findings or legal conclusions in this report and

recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).

JEFF CLARK

Special Master

Filed June 8, 2021

Sent to S.C. Reporter 8/2/21