[Cite as Cuyahoga Cty. Bd. of Health v. Lipson O'Shea Legal Group, 2013-Ohio-5736.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99832




        BOARD OF HEALTH OF CUYAHOGA COUNTY
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                   LIPSON O’SHEA LEGAL GROUP
                                                          DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            REVERSED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-784198


        BEFORE: Jones, J., Celebrezze, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: December 26, 2013
ATTORNEYS FOR APPELLANT

Ronald A. Annotico
Michael J. O’Shea
Lipson O’Shea Legal Group
Beachcliff Market Square
19300 Detroit Road, Suite 202
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Brian R. Gutkoski
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Lipson O’Shea Legal Group (“law firm”), appeals the

trial court’s granting of summary judgment in a declaratory judgment action in favor of the

plaintiff-appellee, Board of Health of Cuyahoga County, Ohio (“BOH”). For the reasons

that follow, we reverse.

                             I. Procedural History and Facts

       {¶2} In January 2012, the law firm emailed the following public records request to

the BOH:

       This is a request for public records to the Cuyahoga County BOH.

       Pursuant to RC 149.43 (Ohio Public Records Act), I hereby request

       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 mb/D1.

       ***

       {¶3} Pursuant to the law firm’s request, the BOH identified 110 files consisting of

more than 5,000 pages of documents, but concluded that the documents contained

“protected health information” that would identify, or could be used to identify, the

individuals who were subject of that information. The BOH determined it was prohibited

by law from producing any of the requested records.

       {¶4} The BOH subsequently filed a complaint for declaratory judgment in

Cuyahoga County Common Pleas Court, asking the court to determine whether the records
were exempt from release as public records under R.C. 149.43.       The board filed 12 lead

assessment investigation files as a representative sample for the court’s in camera review.

The records were filed under seal.

       {¶5} The 12 sample files included: (1) Comprehensive Questionnaire of

Parent/Guardian of Children With Elevated Blood Lead Levels, which included the child’s

name, date of birth, address, family and school information, blood test results, and the

names, addresses, telephone numbers and employment information of the child’s

parent/guardian; (2) Lead Risk Assessment Report, which identified the property owner

and address; (3) Letter of Notice to the child’s parent/guardian; (4) Letter of Notice to the

property owner; (5) Lead Clearance Report, which included the property owner’s name

and address and a corresponding letter to the child’s parent/guardian; (6) Order to Control

Lead Hazard sent to the property owner and listing the property address; and (7) other

investigatory documents that identified the property owner and/or gave the property’s

address.

       {¶6} It is undisputed that the information contained in the documents was not set

forth in summary, statistical, or aggregate form.

       {¶7} The BOH moved for summary judgment, which the law firm opposed.              The

trial court granted the BOH’s motion, finding that the records contained protected health

information that described a child’s past, present, or future physical condition that would

reveal or could be used to reveal the child’s identity and, as such, were confidential and

exempt from release as a public record pursuant to R.C. 3701.17 and 149.43(A)(1)(v).
       {¶8} The law firm filed a timely notice of appeal, and now raises one assignment of

error for our review: “The trial court erred in granting appellee’s motion for summary

judgment.”1

                                     II.   Law and Analysis

       {¶9} In its sole assignment of error, the law firm argues that the trial court erred in

granting the BOH’s motion for summary judgment.

       {¶10} We review an appeal from summary judgment under a de novo standard of

review.    Baiko v. Mays, 140 Ohio App.3d 1, 7, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).    Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

       {¶11} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party.

       {¶12} The moving party carries an initial burden of setting forth specific facts that


          On appeal, the parties do not address the arguments made in the trial court with regard to
       1


the law firm’s request being improper as vague and overbroad or that disclosure is only warranted if
the law firm can show that the records would assist in monitoring the BOH’s compliance with its
statutory duties. Therefore, we will not address these aspects of the trial court’s opinion in this
appeal.
demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d

280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary

judgment is not appropriate; if the movant does meet this burden, summary judgment will

be appropriate only if the nonmovant fails to establish the existence of a genuine issue of

material fact. Id. at 293.

                                Ohio Public Records Act

       {¶13} The Ohio Public Records Act is codified at R.C. 149.43. Courts “construe

the Public Records Act liberally in favor of broad access and resolve any doubt in favor of

disclosure of public records.” State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga

Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 17, citing

State ex rel. Rocker v. Guernsey Cty. Sheriffs’ Office, 126 Ohio St.3d 224,

2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.         Exceptions to disclosure under the Public

Records Act are strictly construed against the public records custodian, and the custodian

has the burden to establish the applicability of an exception.    State ex rel. Cincinnati

Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10,

citing State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶

30.   The records custodian does not meet this burden if it has not proven that the

requested records “fall squarely within the exception.” Jones-Kelley at id.

       {¶14} R.C. 149.43(A)(1)(v) provides that “[r]ecords the release of which is

prohibited by state or federal law” are not “public records.”       Thus, a record whose

release is prohibited by a state or federal law, is not a public record and not subject to
disclosure.

       {¶15} The BOH argues that state law prohibits the disclosure of the requested

records; specifically, R.C. 3701.17, which prohibits the BOH from releasing records that

contain “protected health information.”

       {¶16} R.C. 3701.17(A)(2) defines “protected health information” as:

       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:

       (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.

       {¶17} 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” unless written consent is obtained by the affected

party or unless the information falls within four enumerated exceptions.                   R.C.

3701.17(B)(1)-(4).    None of the exceptions apply to the case at bar.

       {¶18} The law firm contends that many of the records it requested do not contain

“protected health information” as defined by R.C. 3701.17(A)(2) or, once redacted, will

not contain protected health information.     Therefore, the law firm argues, many of the
documents it seeks are not exempt from disclosure.

       {¶19} The law firm relies on the Ohio Supreme Court’s decision in State ex rel.

Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, 844 N.E.2d 1181,

to support its position. In Daniels, a local newspaper filed a mandamus action seeking

release, pursuant to the Ohio Public Records Act, of the Cincinnati Health Department’s

lead-contamination notices.    The department had issued notices to property owners who

owned homes and apartments that housed children whose blood tests revealed elevated

lead levels.    The health department refused the newspaper’s request, citing federal

privacy laws (HIPAA).

       {¶20} The Ohio Supreme Court found that the lead-citation notices and lead

assessment reports did not contain protected health information under HIPAA because the

notices and reports did not identify a particular child with any specific identifiable

information.    Thus, the notices did not contain “protected health information” under

HIPAA.

       {¶21} The court further found even if the lead-citation notices and lead-risk

assessment reports contained “protected health information,” the reports would             be

subject to disclosure under the “required by law” exception to HIPAA because the Ohio

Public Records Law required disclosure of these reports, and HIPAA did not supersede

state disclosure requirements. Id. at paragraph two of the syllabus.

       {¶22} The BOH argues, and we agree, that Daniels is distinguishable from the

instant case.   Not only are we interpreting a state law in this case, but many of the records
do contain at least some identifying information.

       {¶23} We find the recent Ohio Supreme Court decision in O’Shea, 131 Ohio St.3d

149, 2012-Ohio-115, 962 N.E.2d 297, more instructive.          In O’Shea, the law firm

requested copies of documents that documented all instances of lead poisoning in the last

15 years in any CMHA dwelling. The requested records included:

       resident information, including the name, address, and telephone number of

       the resident and any children’s names and dates of birth * * * general

       information, including where the child was likely exposed to lead, when the

       family moved into the home, the addresses, ages, and conditions of the

       dwellings in which the child resided in the past 12 months, and the dates of

       residency, and similar information if the child is cared for away from home *

       * * queries designed to determine the child’s exposure to lead, including

       lead-based paint and lead-contaminated dust hazards, lead-in-soil hazards,

       occupational and hobby-related hazards, child-behavior risk factors, and

       other household-risk factors.        For the occupational hazards, the

       questionnaire requests the family or other occupants’ names, places of

       employment, jobs, and probable lead exposure on the job.

Id. at ¶ 10.

       {¶24} The records also included a “CMHA authorization for the release of medical

information used to obtain a child’s medical records held by the Cleveland Department of

Public Health Lead Poisoning Prevention Program.” Id. The release form included the
“name of the parent or guardian of the minor child, the name, age, and address of the

child, and the parent’s or guardian’s signature and Social Security number.”            Id.

CMHA refused to release any of the requested records, arguing that they were not public

records. The Ohio Supreme Court determined that although CMHA’s lead-poisoning

records contained identifying information that should not be disclosed, the records should

not be completely excluded from release.    The court noted that the lead-poisoning forms:

       further CMHA’s statutory duty to “provide safe and sanitary housing

       accommodations to families of low income within that district.” Like the

       lead-citation notices and assessment reports in Daniels, the residence

       addresses   and    the   substantive    information    concerning    general,

       nonidentifying information, lead-based paint and lead-contaminated dust

       hazards, water-lead hazards, lead-in-soil hazards, occupational or hobby

       hazards, and child-behavior risk factors would all be pertinent to an analysis

       of whether CMHA took steps to provide safe housing in specific CMHA

       dwellings with possible lead hazards. Release of this information would help

       to hold CMHA accountable for its statutory duty of reducing or eliminating

       any lead-related hazard in its residences and would reveal the agency’s

       success or failure in doing so, without requiring release of much of the

       residents’ personal information.

Id. at ¶ 34.

       {¶25} The court determined that release of any non-identifying information should
be allowed and, further, that residence addresses were obtainable under R.C. 149.43

because “the addresses contained in the completed lead-poisoning questionnaires and

releases here help the public monitor CMHA’s compliance with its statutory duty to

provide safe housing.”     Id. at ¶ 35.   The court, however, limited disclosure so that any

personal identifying information would not be obtainable, including:

         the names of parents and guardians, their Social Security and telephone
         numbers, their children’s names and dates of birth, the names, addresses, and
         telephone numbers of other caregivers, and the names of and places of
         employment of occupants of the dwelling unit, including the questionnaire
         and authorization.

Id. at ¶ 36.

         {¶26} In the instant case, the BOH argues that O’Shea may be distinguished from

this case because the O’Shea court did not consider whether R.C. 3701.17 prohibited the

release of documents pursuant to the “prohibited by state law exception” found in R.C.

149.43(A)(1)(v). According to the BOH, this case differs from O’Shea because state law

specifically blocks boards of health from disclosing protected health information.

         {¶27} While the law firm concedes that some of the records it requested may

contain “protected health information,” as defined in R.C. 3701.17, it argues that there are

a number of documents within the subject records that do not contain any medical or

health related information and do not identify anyone other than the landlord property

owner.     According to the law firm, those documents do not contain any “protected health

information,” as defined by the statute, and even if a particular document did contain such

information, the BOH had a duty to redact the protected information and then release the
redacted records pursuant to its public records request.

       {¶28} In its opinion granting the BOH summary judgment, the trial court

determined that all the requested documents, including those that contained only

non-identifying information, were exempt from disclosure under R.C. 143.01(A)(1)(v)

because their release was prohibited by R.C. 3701.17.      The court opined:

       the records include descriptions of children’s physical condition, i.e. lead
       poisoning as diagnosed by test results included therein, and either reveal the
       identity of the individual child by name, address, and date of birth or include
       information that could be used to reveal the identity of the child and
       therefore constitute “protected health information.”

       The investigations that are the subject of the records are instituted for the
       very reason that the children have been diagnosed as having elevated blood
       lead levels. Even if the personal information concerning these children and
       their parents was redacted so that their names, addresses, dates of birth,
       telephone numbers, test results, schools attended, sibling and/or employment
       information would not be revealed, the non-personal identifying information
       that remains, communications to the property owners that include their
       names and addresses and information about the properties at issue could be
       used with other information that is available to predictable recipients of the
       information, to reveal the identity of the individual child.

       Moreover, even if some portions of the information contained in the records

       do not constitute “Protected health information,” the fact remains that the

       information is not in a summary, statistical, or aggregate form and therefore,

       under R.C. 3701.17(C)[,] it may not be released.

       {¶29} As it pertains to this case, the health information the BOH is charged with

protecting its information, in any form, that describes a child’s past, present, or future

physical or mental health status or condition, receipt of treatment or care, if the

information reveals the child’s identity or could be used to reveal the child’s identity,
either by using the information alone or with other information that is available to

predictable recipients of the information.

       {¶30} Some of the information contained in the records constitutes “protected

health information” as defined in R.C. 3701.17(A).             Therefore, pursuant to R.C.

143.01(A)(1)(v) and R.C. 3701.17, that information is not subject to disclosure. We

decline, however, to determine that all the information the law firm sought is protected

health information, which would render it exempt from production.

       {¶31} In other words, a blanket exemption, which is what the BOH seeks, is not

appropriate, nor does it uphold the intent of the Public Records Act. Instead, the BOH

must consider each document to determine if the record contains “protected health

information,” and redact the document accordingly.        If a record contains some material

that is excepted from disclosure, the governmental body is obligated to disclose the

nonexcepted material, after redacting the excepted material.              State ex rel. Natl.

Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 85, 526 N.E. 2d 786 (1988).

       {¶32} Once the identifying personal information is redacted, if the information

contained in the record is still “protected health information,” i.e., it could still be used to

identify the child, then that document is not subject to disclosure. But if the document

contains only non-identifying information (of the affected child, family member, or

parent/guardian) either on its face or after redaction, it does not, by definition contain

“protected health information” and is subject to disclosure.

       {¶33} After a de novo review of the sample documents, we note that some of the
documents, such as Letters of Notice to the landlord property owner, do not on their face

contain “protected health information” because they do not describe a child’s past, present,

or future physical or mental health status or condition, receipt of treatment or care.

       {¶34} We agree with the BOH that the child data forms that include a child’s

medical information are not subject to disclosure, even after redaction, because those

forms, in and of themselves, are “protected health information.”     But we do not agree that

the disclosure of (1) the property owner’s name and address, if the property owner is not

the parent/guardian of the affected child, and (2) the address of the property, are sufficient

to trigger the provision in R.C. 3701.17(A)(2)(b) that prohibits disclosure if the

information could be used to reveal the affected child’s identity “if used with other

information that is available to predictable recipients of the information.”

       {¶35} Therefore, the landlord property owner’s name and address and the

property’s address are subject to disclosure. But any personal identifying information,

including, but not limited to, the affected child’s and parent/guardian’s name, caregiver

information, social security numbers, addresses, dates of birth, telephone numbers, test

results, schools attended, sibling, and/or parent/guardian employment information must be

redacted.

       {¶36} In O’Shea, 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, the Ohio

Supreme Court specifically noted that release of the requested information “would help to

hold CMHA accountable for its statutory duty of reducing or eliminating any lead-related

hazard in its residences and would reveal the agency’s success or failure in doing so,
without requiring release of much of the residents’ personal information.” Id. at ¶ 34.

      {¶37} In this case, the BOH is currently operating a lead hazard control and health

homes program under a $3.4 million federal grant and “endeavors to pursue elimination of

lead hazards each year.”   Affidavit of BOH Commissioner Terry Allan, ¶ 16.         Release

of the requested information could likewise help to hold the BOH accountable for its duty

and promise to reduce lead-related hazards in Ohio’s largest county and reveal its

successes or failures in doing so, also without requiring the release of prohibited

information.

      {¶38} In light of the above, the trial court erred in granting summary judgment to

the BOH. The sole assignment of error is sustained.

      {¶39} Accordingly, judgment reversed and case remanded to the trial court for

proceedings consistent with this opinion.

      It is ordered that appellant recover from appellee his costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., and TIM McCORMACK, J., CONCUR
