The Ohio Court of Claims has ordered the state health department to release hospital data about daily bed capacity, medical supplies, and staffing levels during the continuing COVID-19 pandemic.

The ruling this week rejected the Ohio Department of Health’s position that the data are security records exempted from disclosure to the public under the state’s public records law. Eye on Ohio, Ohio Center for Investigative Journalism, had requested the records in late March in the early days of the pandemic in the United States.

The Ohio Department of Health (ODH) stated that its data-gathering software, called Surgenet, tracks resources available at participating hospitals for responding to crises such as a bioterrorism attack or pandemic. The department claimed the collected information is a security record because it could be used in response to a future terrorism attack.

The Court of Claims determined, however, that the health department failed to prove the hospital data were records “assembled, prepared, or maintained … to prevent, mitigate, or respond to acts of terrorism” in this case.

“Although the Surgenet system could be used to mitigate or respond to acts of terrorism at some future time, and ODH may be able then to justify the security records exception, its daily hospital bed and resource records were not being so used on the date of this request,” stated an October report by the Court of Claims special master, who reviews public records disputes.

This week’s Court of Claims decision adopted the special master’s report and recommendations after neither party objected to them.

Investigative Journalists Seek Hospital Bed, Supply, and Staff Data
In its public records request, Eye on Ohio asked for the most recent data on each hospital’s capacity and availability of adult and pediatric medical, surgical, critical care, and airborne isolation beds, as well as the availability of medical supplies including ventilators, N95 and other masks, face shields, gloves, and gowns. The journalists also sought data on physician, nurse, and other staffing levels at each hospital.

The Ohio Hospital Association transfers data collected daily from participating hospitals to the federally funded ODH Surgenet system. The health department’s court filings describe Surgenet as “a tool to be utilized during an emergency involving the public’s health which could severely impact hospital services.”

In April, the health department denied the records request, citing the security records exemption.

Eye on Ohio filed a complaint with the Court of Claims, maintaining it was being denied access to public records.

Court Considers Whether Data Employed in Terrorism Response
ODH maintained its entire Surgenet computer system is a security record. The Court of Claims explained that computer systems are repositories of records, and the Ohio Public Records Act focuses on the records, not on systems. The department must prove the actual records requested were used to mitigate or respond to terrorism at the time of Eye on Ohio’s request, the court noted.

The department argued it received a verbal warning in March from an FBI agent about credible threats by foreign terrorist organizations to attack the U.S. healthcare infrastructure. The court didn’t find a connection between the threat and the requested records.

“A general warning that a terrorist organization is directing followers to attack unnamed healthcare infrastructure anywhere within the United States is not the type of specific, credible, current threat required to prove any exception based on risk,” the special master’s report stated. “Nor, even were a specific terrorism threat identified with high confidence, does ODH explain how the snapshot of Surgenet hospital data existing on March 27, 2020 was assembled to prevent, mitigate or respond to that terrorist threat ….”

ODH also contended that Surgenet’s value depends on participating hospitals honestly reporting data and that the facilities prefer not to discuss the information publicly. Even if true, “public offices may not withhold records merely because of a policy preference for confidentiality,” the report concluded.

Eye on Ohio is entitled to recover the $25 court filing fee and any other costs, except attorney fees, from the health department.

Eye on Ohio, Ohio Center for Investigative Journalism v. Ohio Department of Health, 2020-Ohio-5278. Case No. 2020-00279PQ.

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