[Cite as Scott v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-4383.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Aaron Scott,                                         :

                 Plaintiff-Appellant,                :
                                                                        No. 12AP-755
v.                                                   :              (Ct. of Cl. No. 2011-11157)

Ohio Department of Rehabilitation                    :             (REGULAR CALENDAR)
and Correction,
                                                     :
                 Defendant-Appellee.
                                                     :
Joseph N. Williams,
                                                     :
                 Plaintiff-Appellant,
                                                     :                  No. 12AP-756
v.                                                                  (Ct. of Cl. No. 2012-01554)
                                                     :
Ohio Department of Rehabilitation                                  (REGULAR CALENDAR)
and Correction,                                      :

                 Defendant-Appellee.                 :

Thomas Stallings,                                    :

                 Plaintiff-Appellant,                :
                                                                        No. 12AP-757
v.                                                   :              (Ct. of Cl. No. 2011-12137)

Ohio Department of Rehabilitation                    :             (REGULAR CALENDAR)
and Correction,
                                                     :
                 Defendant-Appellee.
                                                     :
Anthony Moody,
                                                     :
                 Plaintiff-Appellant,
                                                     :                  No. 12AP-758
v.                                                                  (Ct. of Cl. No. 2011-11173)
                                                     :
Ohio Department of Rehabilitation                                  (REGULAR CALENDAR)
and Correction,                                      :

                 Defendant-Appellee.                 :
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                      2




Larry Solomon,                         :

             Plaintiff-Appellant,      :
                                                         No. 12AP-760
v.                                     :             (Ct. of Cl. No. 2011-11165)

Ohio Department of Rehabilitation      :           (REGULAR CALENDAR)
and Correction,
                                       :
             Defendant-Appellee.
                                       :
Lavance Turnage,
                                       :
             Plaintiff-Appellant,
                                       :                 No. 12AP-761
v.                                                   (Ct. of Cl. No. 2011-13061)
                                       :
Ohio Department of Rehabilitation                  (REGULAR CALENDAR)
and Correction,                        :

             Defendant-Appellee.       :

Frank E. Tyson,                        :

             Plaintiff-Appellant,      :
                                                         No. 12AP-762
v.                                     :             (Ct. of Cl. No. 2011-13249)

Ohio Department of Rehabilitation      :           (REGULAR CALENDAR)
and Correction,
                                       :
             Defendant-Appellee.
                                       :
Jameel R. Haamid,
                                       :
             Plaintiff-Appellant,
                                       :                 No. 12AP-763
v.                                                   (Ct. of Cl. No. 2011-11432)
                                       :
Ohio Department of Rehabilitation                  (REGULAR CALENDAR)
and Correction,                        :

             Defendant-Appellee.       :
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                          3




Michael Evans,                            :

             Plaintiff-Appellant,         :
                                                             No. 12AP-764
v.                                        :              (Ct. of Cl. No. 2012-02089)

Ohio Department of Rehabilitation         :             (REGULAR CALENDAR)
and Correction,
                                          :
             Defendant-Appellee.
                                          :
John W. Forester,
                                          :
             Plaintiff-Appellant,
                                          :                  No. 12AP-765
v.                                                       (Ct. of Cl. No. 2011-12056)
                                          :
Ohio Department of Rehabilitation                       (REGULAR CALENDAR)
and Correction,                           :

             Defendant-Appellee.          :




                                    D E C I S I O N

                              Rendered on October 3, 2013


             Swope and Swope, and Richard F. Swope, for appellants.

             Michael DeWine, Attorney General, and Kristin S. Boggs, for
             appellee.

                      APPEALS from the Court of Claims of Ohio
VUKOVICH, J.

      {¶ 1} These ten consolidated appeals are brought from judgments of the Court of
Claims of Ohio granting summary judgment in favor of defendant-appellee, Ohio
Department of Rehabilitation and Correction ("ODRC").
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                            4


       {¶ 2} The ten individual plaintiffs-appellants are all inmates at the Mansfield
Correctional Institution ("MCI") who allege that their confidential medical records were
negligently released to the general prison population. Their separately-filed complaints
state claims for invasion of privacy through wrongful dissemination of medical
information. They also generally claim a violation of the right to privacy under other,
unspecified, state and federal law.
       {¶ 3} The Court of Claims granted summary judgment for ODRC on the basis that
the nonspecific invasion-of-privacy claims were constitutional in nature and could not be
considered by the Court of Claims. With respect to the claims for wrongful dissemination
of medical information, the court addressed this as a common-law claim for the tort of
unauthorized disclosure of privileged medical information. The court found that the
circumstances under which plaintiffs' medical information was disclosed did not meet the
elements set forth in Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395 (1999), for this tort.
As an alternative ground for ruling in favor of ODRC, the court held that ODRC was
entitled to the defense of discretionary immunity for the actions and inaction of MCI staff
that resulted in the disclosure of medical information.
       {¶ 4} Plaintiffs bring the following six assignments of error on appeal:
              ASSIGNMENT OF ERROR NO. 1:

              THE TRIAL COURT ERRED WHEN IT DECIDED
              DISPUTED ISSUES OF FACTS, GRANTED SUMMARY
              JUDGMENT AND FAILED TO GIVE PLAINTIFFS-
              APPELLANTS' EVIDENCE ITS MOST FAVORABLE
              INTERPRETATION, SUPPORTING OPPOSITION TO
              DEFENDANT-APPELLEE'S MOTION FOR SUMMARY
              JUDGMENT.

              ASSIGNMENT OF ERROR NO. 2:

              THE TRIAL COURT ERRED IN RULING DOCUMENTS
              SEVERAL INMATES RELY ON AS BEING PART OF
              DOCUMENTS DISSEMINATED TO THE PRISON
              POPULATION WERE NOT ATTACHED TO THE
              PLEADINGS OR MADE EXHIBITS, SINCE THIS WAS NOT
              AT ISSUE, BRIEFED OR DISCUSSED, EXCEPT BY THE
              COURT, AND IN FACT WERE IN THE RECORD.

              ASSIGNMENT OF ERROR NO. 3:
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                            5



              THE TRIAL COURT ERRED IN RULING THE TRASH
              DISPOSAL UTILIZED IN DISPOSING OF OUTDATED
              MEDICAL RECORDS WAS AUTHORIZED BASED ON
              DISCRETION WHEN PLAINTIFFS-APPELLANTS' EVID-
              ENCE ESTABLISHED THERE WAS NO POLICY AND
              ACCESS WAS OPEN TO ALL EMPLOYEES AND INMATES
              UPON TRASH LEAVING THE PHARMACY, SUCH
              RECORDS   BEING   LEGALLY   PRIVILEGED  AND
              CONFIDENTIAL.

              ASSIGNMENT OF ERROR NO. 4:

              THE TRIAL COURT ERRED IN GRANTING SUMMARY
              JUDGMENT,    RULING     DEFENDANT-APPELLEE'S
              ACTIONS DID NOT CONSTITUTE AN UNAUTHORIZED
              DISCLOSURE OF PLAINTIFFS-APPELLANTS' MEDICAL
              RECORDS.

              ASSIGNMENT OF ERROR NO. 5:

              THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
              APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND
              OVERRULING PLAINTIFFS-APPELLANTS' MOTION FOR
              SUMMARY JUDGMENT.

              ASSIGNMENT OF ERROR NO. 6:

              THE TRIAL COURT ERRED IN RULING THE AFFIDAVIT
              OF PLAINTIFF-APPELLANT JAMEEL HAAMID WAS
              TOTAL HEARSAY AND WAS DISREGARDED IN RULING
              ON THE MOTIONS FOR SUMMARY JUDGMENT OF
              PLAINTIFFS-APPELLANTS AND DEFENDANT-APPELLEE.

       {¶ 5} Plaintiffs' assignments of error one, three, four and five all address
interwoven issues regarding the general propriety of a grant of summary judgment in this
case and will be addressed together after disposal of the remaining two assignments of
error. These raise specific issues regarding evidentiary rulings by the trial court.
       {¶ 6} Plaintiffs' second assignment of error asserts that the trial court erred in
finding that four of the plaintiffs cannot state meritorious claims because their names, in
fact, do not appear on the misappropriated documents that underlie this case. The Court
of Claims concluded that the document containing the names of these four plaintiffs was
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                              6


not admitted under the case numbers for their individual complaints.              The court
concluded that, as a result of this omission, there was no evidence in the record that
private medical information about these plaintiffs was released. On this basis, the court
granted summary judgment in favor of ODRC on the complaints underlying our appeal
Nos. 12AP-761, 12AP-762, 12AP-764 and 12AP-765.
       {¶ 7} We find error because the record of proceedings supports plaintiffs'
contention on appeal that these four plaintiffs' names do appear on a relevant document
filed in the case.
       {¶ 8} Six of the ten plaintiffs in these cases are HIV-positive inmates receiving a
course of ongoing healthcare for that condition and appearing on a list maintained and
periodically updated by the institution's medical staff. The other four plaintiffs appear on
a separate "chronic care list" for other ailments requiring ongoing care, but are not HIV-
positive. These documents constitute two of the documents that made their way into the
hands of inmates and then were posted or circulated among the general inmate
population to the detriment of those appearing on the list. The trial court apparently
considered that the chronic care list containing the names of the non-HIV-positive
plaintiffs was not before it for purposes of deciding summary judgment because it was not
attached to those four plaintiffs' complaints. Plaintiffs respond that, by agreement of
counsel in consolidating these ten cases, the matters went forward on a single record
which does in fact contain the purportedly omitted list as an exhibit to a deposition.
       {¶ 9} On appeal, ODRC's response to this assignment of error is, in fact, not
responsive. More specifically, counsel for ODRC does not dispute the general assertion
that an agreement to go forward on a single record was made early in proceedings for
these ten cases, or that the second chronic care list was, in fact, filed with the deposition
for one of the ten cases, albeit not in one of the four cases brought by the non-HIV-
positive inmates. The refusal to consider the chronic care list containing these four
plaintiffs appears to constitute a mere oversight by the Court of Claims, and on appeal we
will, when conducting our de novo review of the grant of summary judgment, consider
this document as properly found in the record for the pertinent cases. Plaintiffs' second
assignment of error accordingly has merit and is sustained.
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                              7


       {¶ 10} Plaintiffs' sixth assignment of error asserts that the trial court erred in
finding that the affidavit of plaintiff Jameel Haamid was hearsay in its entirety and would
not be considered for summary judgment purposes. The brief of counsel for ODRC
contains no response to this assignment of error. Independently examining the affidavit
in question, we find that the bulk of the affidavit concerns hearsay assertions regarding
matters for which the affiant had no personal knowledge.          These matters include a
description of the manner in which the confidential medical information was mishandled
by prison personnel, obtained by inmates, and distributed. One aspect of the affidavit,
however, is admissible. The averment that the affiant inmate's medical records were
circulated throughout the compound and clearly identified him is based upon his personal
knowledge, as is his averment that this was done without his consent. Plaintiffs' sixth
assignment of error is accordingly overruled in part and sustained in part, and we will
consider the non-hearsay aspect of inmate Haamid's affidavit.
       {¶ 11} Plaintiffs' four remaining assignments of error all assert that the trial court
erred in granting summary judgment on either of the alternative bases cited:
(1) discretionary immunity, or (2) a lack of evidence supporting each of the elements of
the tort of unauthorized disclosure of medical information. Summary judgment under
Civ.R. 56(C) may be granted only when there remains no genuine issue of material fact,
the moving party is entitled to judgment as a matter of law, and reasonable minds can
come to but one conclusion, that conclusion being adverse to the party opposing the
motion. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 629 (1992),
citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978). Additionally, a
moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory
assertions that the nonmoving party has no evidence to prove its case. Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). Rather, the moving party must point to some evidence that
affirmatively demonstrates that the nonmoving party has no evidence to support each
element of the stated claims. Id.
       {¶ 12} An appellate court's review of summary judgment is de novo. Koos v. Cent.
Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994); Bard v. Soc. Natl. Bank,
10th Dist. No. 97APE11-1497 (Sept. 10, 1998). Thus, we conduct an independent review of
the record and stand in the shoes of the trial court. Jones v. Shelly Co., 106 Ohio App.3d
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                              8


440, 445 (5th Dist.1995). As such, we have the authority to overrule a trial court's
judgment if the record does not support any of the grounds raised by the movant, even if
the trial court failed to consider those grounds. Bard.
       {¶ 13} Most of the facts in this case are not in dispute. Sharon K. Welch testified in
her deposition that she was a pharmacy technician at MCI filling prescriptions for inmates
in June 2011. As part of the healthcare center routine, medical staff would generate HIV-
positive and chronic care lists covering inmates receiving ongoing regular treatment for
HIV or other chronic conditions. Outdated lists, Welch testified, were customarily placed
in the pharmacy trash without being shredded.         At this time, there was no explicit
institutional policy concerning disposal of inmate medical records, such as a requirement
to burn or shred such documents. Despite this, Welch stated that she understood that
such documents were confidential and should not be shared with unauthorized
individuals.
       {¶ 14} Welch testified that pharmacy trash would be bagged and placed outside the
back door of the pharmacy in a secure hallway. An inmate worker would then collect this
trash and take it to the dumpster located in another controlled-access area. Welch was
aware that the documents underlying the present cases had been circulated among the
inmates, but was unaware of any other incidents regarding inmate medical records in her
prior 16 years of employment at MCI.
       {¶ 15} Welch also stated that once trash left the pharmacy, it was accessible by any
inmate. On this last point, ODRC later filed a clarifying or supplemental affidavit by
Welch contradicting this statement in her deposition and averring that Welch had no
personal knowledge of trash disposal procedures at the institution beyond her personal
experience in collecting pharmacy trash and placing it outside the pharmacy door.
Normally, a party moving for or opposing summary judgment may not create or eliminate
a genuine issue of material fact by introducing new materials that contradict prior
deposition testimony. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455. As such, we
would typically consider the contradictory materials in the light most favorable to the
nonsubmitting party and apply the version of Welch's testimony that least favors ODRC
when deciding the propriety of summary judgment. However, we find in this case that the
purported clarification is without impact on our decision because it is already apparent
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                           9


from the balance of her testimony that Welch had no personal knowledge of the fate of
pharmacy trash once it left her control. Any deposition comments on her part regarding
that process would have been disregarded as hearsay even without the benefit of the
subsequent affidavit.
       {¶ 16} ODRC also submitted in support of summary judgment the affidavit of Alice
Cain, employed at the time in question as a healthcare administrator at MCI. Cain's
affidavit avers that pharmacy trash would be disposed of with trash generated elsewhere
in the healthcare center. This was initially kept in a back hallway to which inmates did
not have general access. Prison staff would unlock the door accessing this hallway and
another door leading to an outside dumpster, pursuant to which either prison staff or a
supervised inmate on janitorial duty (a "porter") would place the bagged trash in a locked
dumpster.
       {¶ 17} Corrections Officer E. Hermann executed an affidavit averring that, as part
of his regular duties, he supervised porters taking trash carts to the trash compactor for
disposal. This affidavit, however, only attests to procedures in place currently, and not
those in place during June 2011.      The trial court properly disregarded Hermann's
affidavit.
       {¶ 18} Testimony by two inmates gave conflicting accounts of how the HIV-
positive and chronic care lists came into the possession of inmates for subsequent
distribution in the general inmate population. Inmate Kenneth Kirks testified that he was
an inmate at MCI from 2006 and incarcerated there in June 2011. At that time, Kirks was
employed as an inmate kitchen worker. His duties included cleaning up an area by the
loading dock and dumpsters. As he was sweeping up this area one day, he saw some
papers under the dumpsters and blew them out with a leaf blower. These were the
pharmacy documents, and he showed them to a fellow inmate, Phillip Kukla, who also
worked in the kitchen. Kirks made copies of the documents in the kitchen and in some
indeterminate or unspecified manner made those copies accessible to the general inmate
population.
       {¶ 19} Inmate Kukla gave a differing account of how Kirks obtained the lists.
Kukla testified that, despite Kirks' assertions, Kukla had never possessed the treatment
lists. Kukla's version was that he and Kirks were not cleaning the dumpster area when
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                              10


Kirks found the lists, but were loading food into a freezer truck because the kitchen
freezers were inoperative. In Kukla's experience, Kirks would take any opportunity he
could to go through dumpster trash looking for contraband. On this occasion, after
finding the healthcare lists, Kirks had stated he thought the documents would be a
valuable source of information with which to blackmail or extort other inmates.
       {¶ 20} Viewing the evidence, where conflicting, in the light most favorable to
plaintiffs, the question is whether these facts support their claims for unauthorized release
of medical information or invasion of privacy.          We first consider plaintiffs' non-
particularized claims for invasion of privacy under unspecified state or federal law.
       {¶ 21} Plaintiffs do not argue any specific federal entitlement applicable to a state
institution other than a general constitutional claim, over which the Court of Claims
would not have jurisdiction. Bleicher v. Univ. of Cincinnati College of Medicine, 78 Ohio
App.3d 302, 307 (10th Dist.1992). The Court of Claims properly concluded that it lacked
jurisdiction over these claims. Having so concluded, however, the court then improperly
went on to exercise de facto jurisdiction over the claims by granting summary judgment
thereon.
       {¶ 22} Because a grant of summary judgment is a disposition on the merits, it is
inconsistent with a lack of jurisdiction in the court issuing such a judgment. Kinney v.
Ohio Dept. of Adm. Servs., 30 Ohio App.3d 123 (10th Dist.1986). This principle prevents
a court lacking subject-matter jurisdiction from entering a judgment on the merits that
would stand as res judicata. Once it decided that it lacked jurisdiction over this aspect of
the inmates' complaints, the only course open to the Court of Claims was to dismiss these
claims without prejudice. The trial court's judgments will be reversed on this point, and
remanded for the Court of Claims to modify its judgments accordingly.
       {¶ 23} We next turn to plaintiffs' claims for unauthorized release of medical
information under Biddle. The first defense raised by ODRC is an assertion of
discretionary immunity.
       {¶ 24} Under the judicially-created doctrine of discretionary immunity, ODRC is
generally immune from tort liability for decisions related to policies and procedures.
Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736. The
state cannot be sued for its legislative or judicial functions or the exercise of an executive
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                                11


or planning function involving "the making of a basic policy decision which is
characterized by the exercise of a high degree of official judgment or discretion."
Reynolds v. State, Div. of Parole & Community Servs., 14 Ohio St.3d 68, 70 (1984). The
doctrine of discretionary immunity has been applied where appropriate to policies and
procedures that preserve internal order and maintain institutional security in the penal
system. Hughes at ¶ 17, citing Bell v. Wolfish, 441 U.S. 520, 547-48 (1979).
          {¶ 25} This court has clearly rejected instances in which the claimed discretionary
immunity applies to mere execution or implementation of policy decisions. See, e.g.,
Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048, ¶ 14 (10th
Dist.).    The present case, however, does, in fact, fall under discretionary immunity
because the institution's fundamental choice at an executive level to implement, or as the
case may be not implement, a more comprehensive medical trash disposal policy
constitutes a basic planning function and characterized by the exercise of a high degree of
official judgment or discretion. It is uncontroverted in the present case that Welch was
following established prison custom, even in the absence of an explicit written procedure,
when she disposed of trash as she did. Similarly, institutional policy regarding inmate
participation in disposal of trash, and as a result some supervised access to the dumpster
area, represented a discretionary planning function. There is no assertion of specific
negligence on Welch's part, or any other specific institutional staff member.
Comprehensively stated, in this instance institutional policy was strictly followed, albeit
with bad results. We therefore find that plaintiffs' claims are barred by the doctrine of
discretionary immunity.
          {¶ 26} Alternatively, we find that plaintiffs have failed to present evidence on each
and every element of their tort claim.           Ohio recognizes the independent tort of
unauthorized disclosure of confidential medical information: "In Ohio, an independent
tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic
medical information that a physician or hospital has learned within a physician-patient
relationship."     Biddle at paragraph one of the syllabus; compare Roe v. Planned
Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973; OhioHealth
Corp. v. Ryan, 10th Dist. No. 10AP-937, 2012-Ohio-60. The issue in the present case is
whether an imperfect method for disposal of MCI medical facility trash is enough to fulfill
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                             12


the "unauthorized" element of this tort, or whether, to the contrary, the disclosure of
confidential medical information must be intentional, as ODRC alleges.
       {¶ 27} Ohio cases do not further develop what would constitute "unauthorized
disclosure" pursuant to Biddle. Plaintiffs rely on a federal case discussing privacy rights
created pursuant to statute. Beaven v. U.S. Dept. of Justice, 622 F.3d 540 (6th Cir.2010)
(discussing and applying 5 U.S.C. 552a(g)(4) of the Federal Privacy Act). The act in
question prohibits disclosure of, inter alia, medical information, and provides heightened
penalties when the disclosure is "intentional or willful." 5 U.S.C. 552a(b) and 552a(g)(4).
In Beaven, a staff member inadvertently left a file folder containing sensitive staff
information on a civilian employee's desk. The information then fell into the hands of
inmates. The issue was whether an inadvertent disclosure could be "intentional or willful"
within the meaning of the statute. The court found that it could.
       {¶ 28} While we do not disagree with the proposition that Beaven can provide
useful guidance by analogy, the statutorily-defined right to privacy examined therein does
not extend rights that are co-extensive with those granted by the common-law tort
definition in Ohio.
       {¶ 29} Biddle itself is certainly premised on facts that involved a deliberate and
intentional disclosure, but in creating this new tort under Ohio law, the Supreme Court
relied on some authorities involving negligence fact patterns. Id. at 397; see, e.g., Prince
v. St. Francis-St. George Hosp., Inc., 20 Ohio App.3d 4, 6-7 (1985) ("We believe that in
given factual situations there could well be mixed negligence and intention. We do not
elaborate on this point, nor is it necessary for us to do so. * * * It seems to us that a
negligent invasion of the right of privacy, which is a distinct possibility in the factual
scenario sub judice, can just as effectively invade one's right of privacy as an intention to
do so."). We are therefore unwilling to accept ODRC's proposal that "unauthorized"
disclosure under Biddle equates to "intentional" disclosure.          Ultimately, however,
considering the matter as one of first impression, we find that under the circumstances
outlined in the facts given above, supervised inmate access to trash containing
unshredded medical documents does not constitute "disclosure" for purposes of the tort
of unauthorized disclosure of medical information as defined by Biddle.
Nos. 12AP-755, 12AP-756, 12AP-757, 12AP-758,
12AP-760, 12AP-761, 12AP-762, 12AP-763, 12AP-764 and 12AP-765                              13


       {¶ 30} In so holding, we acknowledge counsel for plaintiffs' expressed concern that
the prison environment presents special problems with respect to safeguarding medical
information. Given the known propensity of some inmates to ingeniously and maliciously
exploit any opportunity for leverage over staff or fellow inmates, this is undeniable. We do
not accept, however, counsel's outcome-based proposition that any institutional failure to
fully anticipate and forestall this sort of inmate conduct represents actionable conduct
under Biddle. Without precluding that an inadvertent disclosure might, under different
facts, fulfill the elements of Biddle, the present case does not.
       {¶ 31} Plaintiffs' first, third, fourth, and fifth assignments of error are accordingly
sustained in part and overruled in part.
       {¶ 32} In summary, plaintiffs' second assignment of error is sustained. Plaintiffs'
first, third, fourth, fifth, and sixth assignments of error are sustained in part and
overruled in part. The judgments of the Court of Claims of Ohio granting summary
judgment in favor of ODRC on plaintiffs' claims for unauthorized disclosure of medical
information are affirmed. The court of claims' grant of summary judgment on plaintiffs'
remaining claims is reversed, and the matter remanded to modify its judgments to reflect
a dismissal of these claims for lack of jurisdiction.
                                                                  Judgments affirmed in part,
                                                        reversed in part, and cause remanded.

                           KLATT, P.J., and SADLER, J., concur.
              VUKOVICH, J., of the Seventh Appellate District, sitting by
              assignment in the Tenth Appellate District.
