Opinion
Case No. 2020-00116PQ
09-08-2020
DENNIS WHITEHEAD Requester v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION - BUREAU OF RECORD MANAGEMENT Respondent
REPORT AND RECOMMENDATION
{¶1} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the Court of Claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the Public Records Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20.
{¶2} On January 13, 2020, Dennis Whitehead made a request to the Ohio Department of Rehabilitation and Correction (DRC) for "available public records from the incarceration of PosteaI LASKEY from 1967 to his death in 2007." (Complaint at 6.) The Correctional Records Office Supervisor created a Certificate of Incarceration and sent it to Whitehead with a brief summary of "information from his old microfiche," but provided no records from Laskey's incarceration files. (Id. at 3-4.)
Whitehead submits lengthy explanations of his purpose in requesting these records. However, a public office's duty to produce public records is generally not conditioned on the requester's intended use of the records. R.C. 149.43(B)(4).
{¶3} On February 18, 2020, Whitehead filed a complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). On May 1, 2020, the court was notified that mediation had failed to successfully resolve all disputed issues between the parties. On July 30, 2020, DRC filed a motion to dismiss requester's complaint or in the alternative motion for summary judgment (Response). On August 20, 2020, DRC filed copies of the withheld records, under seal, and the affidavit of DRC staff counsel for public information. On August 21, 2020, DRC filed a document labeled "Privilege Log."
Motion to Dismiss
{¶4} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).
{¶5} DRC moves to dismiss the complaint on the grounds that it has provided Whitehead with all requested public records, except medical records that are exempt from release. On review, I find that the facts required to support the allegation of mootness and application of the medical records exemption are not conclusively shown on the face of the complaint and attachments thereto. Moreover, as the matter is now fully briefed I find the arguments to dismiss are subsumed in the arguments on the merits of the case. I therefore recommend that that the motion to dismiss be denied, and the matter be determined on the merits.
The terms "exception" and "exemption" are used interchangeably in case law, and in this report.
Suggestion of Mootness
{¶6} In an action to enforce R.C. 149.43(B), a public office may produce the requested records prior to the court's decision and thereby render the claim for production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22. DRC provided Whitehead with some responsive information and one newly-created record prior to the filing of the complaint (Complaint at 3-4). During litigation, DRC produced 18 pages of institutional records. (Response at 2-3, Exh. A.) DRC asserts that Whitehead's claims are now moot, except as to his request for production of medical records. (Id. at 4.) Whitehead does not admit that all non-medical records have been provided to him, but states that his "outstanding issue" is for access to "medical and mental health records from Laskey's time of imprisonment." (Id., Exh. B.)
{¶7} I find that Whitehead's claims for production of records have been rendered moot as to the records actually disclosed to date. (Id., Exh. A; Complaint at 3-4.)
Burden of Proof
{¶8} A requester must establish public records violations by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). DRC is a public office and the withheld documents are "records" kept by DRC, thus meeting the definition of "public record." The DRC records filed under seal are responsive to Whitehead's request. (Pierce Aff. at ¶ 3-7.) With the propriety of the request established, the burden shifts to DRC to show that any withheld records were exempt from production under the Act.
R.C. 149.43(A)(1) "Public record" means records kept by any public office.
{¶9} The Supreme Court sets the following standard to determine application of an alleged exception to the Public Records Act:
We have consistently held that the Public Records Act "'is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.'" Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 7, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 1996-Ohio-214, 662 N.E.2d 334 (1996). To that end, the party withholding records on the basis of an alleged exception to disclosure bears the burden of showing that the records fall within the exception. State ex rel. Cincinnati Enquirer v. Jones-Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. Phrased another way, exceptions to the Act must be "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. Any doubt should be resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).
Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10. And a "custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception." Id.
Exemption Asserted - Medical Records
DRC does not argue that any statutory or common law exemption applies to records of Laskey's incarceration, other than his medical records. To the extent any other exemption could apply, it has been waived.
{¶10} DRC asserts that all withheld documents are medical records exempt from public records release under R.C. 149.43(A)(1)(a) and (A)(3), and R.C. 5120.21(C)(1). (Pierce Aff. at ¶ 6-8.) Whitehead was not able to examine the records filed under seal, and DRC's "privilege log" and affidavit did not provide him with any description of individual records that would have enabled him to contest whether they met the definition of medical records. Whitehead does assert that even documents shown to be medical records should be released, since any privacy interest of the deceased inmate/patient has expired. (Response, Exh. B.)
{¶11} R.C. 149.43(A)(1)(a) provides an exemption from public records disclosure for "medical records," defined for purposes of the Act as
any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.R.C. 149.43(A)(3). The definition of "medical records" has three requirements:
1. The document must pertain to the medical history, diagnosis, prognosis, or medical condition of a patient, and,The three requirements are conjunctive, so that the absence of any one factor disqualifies a record from the definition. 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, 306, ¶ 42; State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997); State v. Rohrer, 2015-Ohio-5333, 54 N.E.3d 654, ¶ 54-57 (4th Dist.); Shaffer v. Budish, Ct. of Cl. No. 2017-00690PQ, 2018-Ohio-1539, ¶ 30-35.
2. The document must have been generated in the process of medical treatment, and,
3. The document must be maintained in the process of medical treatment.
{¶12} Medical records of DRC inmates are subject to an additional but functionally identical medical records exemption, defined in R.C. 5120.21(C)(1):
As used in this division, "medical record" means any document or combination of documents that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.This statute lacks certain language in R.C. 149.43(A)(2). However, DRC promulgated an administrative code amplifying R.C. 5120.21(C) that clarifies the exemption is subject to the same "exception to the exemption" in R.C. 149.43(A)(1)(a) and (A)(3):
(2) Medical records that pertain to the medical history, diagnosis, prognosis, or medical condition of an inmate and that is generated and maintained in the process of medical treatment. "Medical records" does not include any document relating to birth, deaths, and the fact of admission to or discharge from a hospital. See divisions (A)(1)(a) and (A)(3) of section 149.43 of the Revised Code.(Emphasis added.) O.A.C. 5120-9-49(B)(2).
{¶13} Whitehead contends that any medical records exemption expired with the death of the inmate to whom the records pertain, citing provisions of the federal Freedom of Information Act (FOIA). However, an unconditional statutory public records exemption does not cease to apply when the subject of the records dies. State ex rel. CNN, Inc. v. Bellbrook-Sugarcreek Local Sch., 2019-Ohio-4187, 134 N.E.3d 268 (2d Dist., Oct. 2, 2019), direct appeal pending Ohio Supreme Court Case No. 2019-1433. Also, FOIA is not applicable to state agencies and officers. State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 35.
Evidence Before the Court
{¶14} DRC's first opportunity to provide proof supporting the claimed exemptions was in its response to Whitehead's complaint. R.C. 2743.75(E)(2). However, DRC's response offered no testimony, privilege log, or document descriptions to support the status of the withheld documents as medical records. The special master provided DRC a further opportunity to produce evidence through an order of August 3, 2020 that invited supporting information and explanation via privilege log and affidavit(s).
{¶15} Unaided in camera review of voluminous records is burdensome for a trial court. Here, DRC has filed 3,893 pages of allegedly exempt records. In such instances, the requirement of a privilege log "places the onus upon the proponent — where it belongs — to meet their burden" to demonstrate which of the records are protected. Csonka-Cherney v. Arcelormittal Cleveland, Inc., 2014-Ohio-836, 9 N.E.3d 515, ¶ 20 (8th Dist.). To facilitate the court's informed review of the records, the special master directed DRC to support in detail the applicability of any public records exemption. (August 3, 2020 Order.) Instead, DRC filed a table labeled "Privilege Log" that merely repeats the same conclusory description and basis for each of the 3,893 pages of records. This document does not satisfy the direction of the August 3, 2020 order to explain with specificity how each numbered record falls squarely under a specific part of R.C. 5120.21(C) or other exemption. State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 19. (Finding that where DRC submitted only conclusory affidavits with bare allegations that a public records exemption applied, it had not met its burden of proof.)
The order was made pursuant to R.C. 2743.75(E)(3)(c) ("The special master may require either or both of the parties to submit additional information or documentation supported by affidavits.").
"DESCRIPTION Medical Record, BASIS OF PRIVILEGE Medical records under R.C. 5120.21(C)(1) are not public records pursuant to R.C. 5120.21(F) and OAC 5120-9-49(B)(2) and thus have been withheld accordingly."
Compare with proof of privilege standards for discovery and subpoena responses contained in Civ.R. 26(B)(8)(a) and Civ.R. 45(D)(4) ("the claim * * * shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.").
{¶16} I find that DRC's privilege log and affidavit, standing alone, fail to meet its burden to provide evidence showing that these records "fall squarely within the claimed exemptions." See Rogers at ¶ 7, 19, 21-22. While DRC deprived Whitehead of dates, categories, record title, profession of provider, and other descriptions that could enable him to contest application of the exemptions, the court may examine the records in camera to determine whether the elements of the exception are "apparent within the records themselves." Id. at ¶ 15. Accord McDougald v. Greene, Slip Opinion No. 2020-Ohio-4268, ¶ 10-11.
Withheld Documents Include Manifestly Non-Medical Records
{¶17} On review, many of the withheld records appear to self-identify as medical records, including forms DMH-0020 (physician's orders), medication charts, consultation requests, mental health records, laboratory test reports, nursing and interdisciplinary notes, hospital records, telemedicine records, vital signs sheets, diet orders, health screenings, vaccination records, medication passes, personality testing, and audiological evaluation.
{¶18} Other documents, or portions of documents, such as notifications of appointments and a certificate of completion of training, do not self-identify as medical records but are conceivably subject to proof as such, had DRC submitted evidence and explanation. If a non-medical record contains some information that independently and fully qualifies as a medical record, that information may be redacted from the document. Dissell v. Cleveland, Ct. of Cl. No. 2017-00855PQ, 2018-Ohio-5444, ¶ 21.
{¶19} However, a large number of documents filed under seal cannot conceivably be construed to meet the definition of medical records. They collectively amount to hundreds of pages. I find that the following categories of records do not fall within the definitions contained in R.C. 149.43(A)(3) or R.C. 5120.21(C)(1):
Optometrist, Optician, and Ocularist Records
{¶20} The withheld documents include records created by optometrists, opticians, or ocularists. These professions do not involve the practice of medicine. R.C. 4725.25; R.C. 4725.40. Their practitioners are not included in Ohio's physician-patient privilege statute, R.C. 2317.02. See Harvey v. Cincinnati Ins. Co., 2nd Dist. Montgomery No. 27470, 2017-Ohio-9226, ¶ 10. I conclude that DRC has not met its burden of proof to show that these records fall squarely within the exemptions defined in R.C. 149.43(A)(3) or R.C. 5120.21(C).
Inmate Transportation Orders
{¶21} The withheld records include numerous orders from the warden approving transportation of the inmate to another location for services. The record of transportation of an individual to a hospital or other dispensing location is not a medical record. Shaffer v. Budish, Ct. of Cl. No. 2017-00690PQ, 2018-Ohio-1539, ¶ 30-37 (video of inmate transport to infirmary). Nor are documents relating to the fact of admission to or discharge from a hospital. R.C. 149.43(A)(3) and O.A.C. 5120-9-49(B)(2). Records of "name, address, age, location of the incident, nature and time of the call, and disposition of the patient" on EMS run sheets are not "medical records" as defined in R.C. 149.43(A)(3). 1999 Ohio Atty.Gen.Ops. No. 006; 2001 Ohio Atty.Gen.Ops. No. 041.
Miscellaneous
{¶22} The withheld records include fax cover sheets, blank pages, blank forms, notification of next of kin forms and letters, warden's authorization to possess a cane, letters to The London Voice and from the Clockwatchers Chess Club, non-medical photographs, education form, job application, healthcare debit forms, institutional transfer cancellation records, phone call request, and records related to funeral and disposition of body. DRC's privilege log asserts without explanation that all of these are medical records. None are identified in the privilege log as to type of record or given any explanation that they are medical in nature, and none self-identify on examination as medical records.
Blank pages and perhaps blank forms could be considered non-records, but DRC has waived this defense, affirmatively describing each blank page and form as a medical record in its privilege log.
Regarding health care payment records, see Ward v. Johnson's Indus. Caterers, 10th Dist. Franklin No. 97APE11-1531, 1998 Ohio App. LEXIS 2841, *19 (June 25, 1998) ("a document in a workers' compensation claim file may contain information about the claimant's medical diagnosis or treatment, but if such document is not generated or maintained in the process of medical treatment, it is a public record and subject to release").
Respondent's Obligation to Identify and Redact Records in Good Faith
{¶23} Public offices are required to organize and maintain their records in such a way as to be able to make them available when requested. R.C. 149.43(B)(2); State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 36; State ex rel. Beacon Journal Pub. Co. v. Andrews, 48 Ohio St.2d 283, 289, 2 Ohio Op.3d 434, 358 N.E.2d 565 (1976). The statutory requirement of organization implies capable administrative management of retrieval, analysis, explanation, and production of public records. DRC may not simply forgo the required evaluation and analysis of requested records and instead make a blanket denial on the assumption that the court will organize, review, and redact its records for it. Where portions of requested records are clearly subject to disclosure, a respondent should undertake separation of public records from putative protected material at the time of the request, and certainly prior to a court's decision. State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 10-12, 552 N.E.2d 243 (C.P.1990).
"To facilitate broader access to public records, a public office or the person responsible for public records shall organize and maintain public records in a manner that they can be made available for inspection or copying in accordance with division (B) of this section." R.C. 149.43(B)(2). --------
{¶24} DRC did not undertake to withhold and redact only those documents arguably exempt as medical records, but instead withheld many that "could not conceivably be construed to be excepted from disclosure." See Telb at 5. DRC fails to describe and explain the exempt nature of the records it has deposited for court review. DRC did not act as a reasonable public office when it relied on the medical records exemptions in R.C. 149.43(A)(3) and R.C. 5120.21(C)(1) to withhold many of these records. A well-informed person responsible for the records would have known that there was no justification under public records law to hold back those documents in the 3,893-page file that are plainly not medical records. See Rogers at ¶ 27-29.
{¶25} On the basis of the facts and applicable law, I conclude that DRC has not met its burden to show that the withheld documents fall squarely within the statutory exemptions for medical records. Ohio Crime Victim Justice Ctr. v. Cleveland Police Div., Ct. of Cl. 2016-00872-PQ, 2017-Ohio-8950, ¶ 45 (adopted Dec. 12, 2017); Narciso v. Powell Police Dept., Ct. of Cl. 2018-01195PQ, 2018-Ohio-4590, ¶ 53-55, 71, adopted at 2018-Ohio-5017.
Conclusion
{¶26} Upon consideration of the pleadings and attachments, I recommend the court issue an order for respondent to disclose all the withheld records that do not meet the definition of "medical records," accompanied by explanations, including legal authority, for continued withholding of purported medical records and for any redaction of records produced. I further recommend 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. I recommend court costs be assessed to respondent.
{¶27} 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).
/s/_________
JEFF CLARK
Special Master Filed September 8, 2020
Sent to S.C. Reporter 5/4/21