Protected health records

By Justice Paul E. Pfeifer

In 2012, Michael J. O’Shea, a principal of Lipson O’Shea Legal Group, made a request for records from the Cuyahoga County Board of Health (“BOH”). In accordance with the Ohio Public Records Act, he requested “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” of 10 mg/dl.

After identifying the relevant responsive information, which it claims comprises approximately 5,000 pages, the BOH determined that it was prohibited from providing the information to Lipson O’Shea.

To confirm its conclusion, the BOH sought a judgment in the court of common pleas with respect to its duty and/or requirements to maintain the confidentiality of the requested records. It submitted to the court 12 sample files as representative examples of the requested records.

Upon review of the records, the trial court concluded that release of the records was prohibited by a state law – we’ll call it the “health information law” – that exempts from disclosure certain health information if the individual is identified or if the information could be used to reveal the individual’s identity.

The court found that the requested records, even if certain information was redacted, could be used to reveal the identities of the individual children. The trial court ruled that release of the records was thus prohibited.

But when the court of appeals reviewed the case it reversed the ruling, concluding that the trial court’s “blanket exemption” was inappropriate because many of the records, even those that contain “protected health information,” contain other information that is not excepted from disclosure. The court declared that instead of withholding all records, the BOH must examine each document, redact any protected health information, and release any remaining unprotected information not otherwise excepted.

Accordingly, the court of appeals determined that the trial court had erred in granting summary judgment. After that, the BOH filed an appeal with us – the Ohio Supreme Court.

The Ohio Public Records Act, which governs the availability of public records for inspection and copying, states that upon request, “all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours.”

We have stated in the past that the fundamental policy of the Act “is to promote open government, not restrict it.” This policy inclines us to liberally interpret public-records requests in favor of disclosure – but not in every circumstance. Release may be prohibited by an exception or by another law that provides protection to the subject of the information sought.

The earlier mentioned “health information law” prohibits the release of “protected health information reported to or obtained by” public-health authorities without the written consent of the individual who is the subject of the record, unless certain conditions are met.

“Protected health information” is information that “describes an individual’s past, present, or future physical or mental status or condition, receipt of treatment or care, or purchase of health products” when either of the following two conditions applies: (1) the information “reveals the identity of the individual who is the subject of the information” or (2) the information “could be used to reveal the identity of the individual who is the subject of the information.”

In a case from 2006, our court concluded that lead-contamination notices issued by a city health department did not reveal “health information” merely because they referred to “a child” – unnamed – whose blood test indicated an elevated lead level.

In that situation, the notices were sent to property owners to apprise them of “violations relating to lead hazards” and did not contain any information about “medical examination, assessment, diagnosis, or treatment of any medical condition” of any individual.

The notices did contain what we termed a “mere nondescript reference to ‘a’ child with ‘an’ elevated lead level,” which we concluded was not protected health information.

Despite some similarity to that 2006 case, we reached a different conclusion in this case because the public-records request in this case is inextricably linked to “protected health information.”

The request seeks “documentation or information of all homes…in Cuyahoga County where a minor child was found to have elevated blood lead levels” in excess of 10 mg/dl. By linking the request to specific blood lead levels, Lipson O’Shea has made it impossible for the BOH to comply without disclosing information that undeniably describes an individual’s “physical or mental status or condition.”

Therefore, the information requested is protected health information if it identifies or can be used to identify the individual who is the subject of the protected health information. It is undeniable that the address of a home where a child has an elevated blood lead level can be used to identify the afflicted child.

Even if it were possible to comply with the request by redacting protected health information, the release of merely the address of a house in response to the public-records request at issue means that a child at the house had “elevated blood lead levels,” which is protected health information.

The real problem in this case was the public-records request itself. It sought records specifically related to a person’s physical status or condition. Lipson O’Shea stated in its brief that there are documents responsive to its request that do not contain protected health information, specifically, “lead hazard violation notices, risk-assessment reports, Health Dept. correspondence with landlords, and lead abatement certifications.”

If that is the case, Lipson O’Shea should have requested access to those documents, not to documents related to homes “where a minor child was found to have elevated blood lead levels.”

Therefore – by a seven-to-zero vote – we affirmed the judgment of the court of appeals and sent the case back to the trial court to review first the sample files and, if necessary, all the responsive information in the possession of the Cuyahoga County BOH to determine what information, if any, can be released after all protected health information is redacted.

By Justice Paul E. Pfeifer

Paul Pfeifer is an associate justice of the Supreme Court of Ohio.

Paul Pfeifer is an associate justice of the Supreme Court of Ohio.