Tying an information request about Cuyahoga County homes to a specific level of lead found in the children living in those homes permitted the county health department’s rejection of a law firm’s public records request.

In a unanimous opinion, the Ohio Supreme Court today affirmed a trial court’s decision to deny the Lipson O’Shea Legal Group’s request for more than 5,000 pages of records regarding homes where elevated levels of lead may have been detected. Writing for the Supreme Court, Justice Paul E. Pfeifer wrote while the firm was not entitled to records as requested, the trial court must now review the records to determine if some of the information can be released in compliance with Ohio’s Public Records Act. He also suggested the law firm might want to revise its request for information that would be available.

“Protected Health Information” at Issue in Records
In 2012, Michael J. O’Shea of Lipson O’Shea sent the Cuyahoga County Board of Health a public-records request 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 milligrams per deciliter. The health board identified about 5,000 pages of information that would meet that request, but to determine its duty to release the information, the board sought a declaratory judgment in Cuyahoga County Common Pleas Court. The trial court reviewed 12 sample files, and concluded the release of the records was prohibited by R.C. 3701.17, which exempts disclosure of certain health information if the individual is identified or the information could be used to reveal an individual’s identity. The court ruled that R.C. 3701.17 meets one of the exemptions in the public records act, under R.C. 149.43(A)(1)(v), and granted summary judgment to the health board.

O’Shea appealed to the Eighth District Court of Appeals, which reversed the trial court’s ruling to block the release of all the records. The Eighth District found that even if the records contained “protected health information,” other information in the records was not exempt from disclosure. The Eighth District ordered the health board to review each document, redact any protected health information, and release the rest. The board appealed the decision to the Supreme Court.

Some Lead Level Information Can Be Released
Justice Pfeifer wrote the goal of the public records act is to promote open government, but the law prohibits release of records when another statute provides protection. He noted R.C. 3701.17(B) generally prohibits the release of protected health information reported to public health authorities without the written consent of the individuals described in the records. He explained that “protected health information” in those records is 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.” If the record includes the protected health information and reveals the individual’s identify or could reveal someone’s identity, it is not a public record.

Justice Pfeifer wrote that the Supreme Court dealt with a similar public-records request for lead levels in children in its 2006 State ex rel. Cincinnati Enquirer v. Daniels case. In that case, the law cited to block disclosure was the federal Health Insurance Portability and Accountability Act. Justice Pfeifer noted the Court found notices that were sent to property owners about “violations relating to lead hazards” were public records. The Court found those lead contamination notices issued by the city health department did not reveal “health information” because they referred to an unnamed child whose blood test indicated an elevated blood level.

“Despite some similarity to the Cincinnati Enquirer case, we reach a different conclusion because the public-records request in this case is inextricably linked to ‘protected health information,’” he wrote.

Justice Pfeifer concluded by linking the request to specific blood lead levels, Lipson O’Shea made it impossible for the health board to comply without describing an individual’s “physical or mental status or condition.” He wrote it is undeniable that the home address of a child with a blood lead level above a specific lead standard would reveal the identity of the child.

Records Sought Related to Physical Conditions
He also found that some of the information prepared by the board was not protected health information, including lead hazard violations, risk assessment reports, lead abatement certifications, and board correspondence to property owners.

“The real problem is the public records request itself. It seeks records specifically related to a person’s physical status or condition,” he wrote.

The Court remanded the case to the trial court to determine what records in the board’s possession can be released with all the protected health information redacted. Justice Pfeifer suggested that rather than have the trial court review all the records, the law firm should revise its request.

2014--0223. Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group, Slip Opinion No. 2016-Ohio-556.

View oral argument video of this case.

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