The Ohio Supreme Court recently decided a case that puts valuable public health data regarding Covid related deaths collected by the Ohio Department of Health out of the public's reach. In a decision that could have far-reaching implications for Ohioans' right to know, the Court held—in a 5 to 2 decision—that the Ohio Department of Health ("ODH") must withhold official cause of death information contained in ODH's Electronic Death Registration System ("EDRS") from the public. In the interest of full disclosure, I represented the losing party in the appeal.
The case arose when Columbus Dispatch journalist Randy Ludlow asked the Ohio Department of Health for "a copy of the EDRS database." He also requested the names and addresses of each decedent, which ODH refused to provide. The ODH cited R.C. 3701.17, which prohibits the release of "protected health information." "Protected health information" includes information that reveals or could be used to reveal the identity of an individual and describes his or her past, present, or future physical or mental-health status or condition.
Mr. Ludlow filed a suit in the Ohio Court of Claims, which held that the information was not exempt from disclosure as "protected health information," because a different statute, R.C. 3705.23(A), expressly makes death certificates public information. The ODH appealed that ruling to Ohio's Tenth Appellate District, which reversed the Court of Claims decision. Mr. Ludlow appealed to the Ohio Supreme Court, which upheld the Tenth District's decision last week.
The Supreme Court's majority opinion focused intently on the language of R.C. 3101.17, which 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[.]" According to the majority, cause of death information describes an individual's "past . . . physical . . . health status or condition," and thus falls within the statutory definition of "Protected Health Information."
The majority opinion is curious, though, because death certificates aren't really protected. The General Assembly has made death certificates public records, including the cause of death information contained on such a certificate. Under R.C. 3705.23, any member of the public may request a death certificate. To do so the requestor must complete a statutorily prescribed application and pay a fee. But this is not the only way to obtain a copy of a death certificate, and the information it contains. Ohio Revised Code, R.C. 3705.231, requires local registrars to allow any individual to photograph or otherwise copy a death certificate. This inspection statute does not require a requestor to fill out an application or pay a fee.
If the General Assembly expressly decided that anyone can copy or photograph any death certificate, including a deceased person's official cause of death, does it make sense that the General Assembly would have also intended that such information constitute "protected health information?" And if cause of death information is otherwise publicly available, what public policy is served by making a convenient database of such information off limits? The majority did not answer either question.
In justifying its ruling, the majority relied exclusively on the statute that requires a requestor to submit an application and a fee. The majority inexplicably ignored the statute that allows anyone to copy any death certificate upon request simply by walking into a local health department and requesting it.
The majority's failure to even discuss the inspection statute makes the dissenting justices' discussion of its importance that much more compelling. Based on this statute, the dissent recognized the clear policy preference expressed by the General Assembly, writing that "[the majority] unnecessarily and inaccurately interprets R.C. 3701.17, 3705.23, and 3705.231 beyond their plain meanings. This is not our role as the judiciary, and changing the meaning of a law causes us to join the ranks of legislative lawmakers, outside of our judicial powers." Hear, hear.
And here's hoping the Ohio General Assembly will take note of this decision and make explicitly clear what has always been its intent – to make the official cause of death information maintained by ODH available to the public.
