PATRICK E. SHEERAN Judge
Sent to S.C. Reporter 10/1/2021
DECISION AND ENTRY
PATRICK E. SHEERAN Judge
{¶ 1} Respondent Ohio Department of Health (ODH) objects to a Special Master's Report and Recommendation of June 8, 2021. Requester Randy Ludlow opposes ODH's objections. The Court overrules ODH's objections for reasons set forth below.
I. Background
{¶2} On January 28, 2021, Ludlow, who at that time was a reporter for The Columbus Dispatch, filed a complaint wherein he claimed that he had been denied access to public records in violation of R.C. 149.43(B). Ludlow alleged:
{¶3} On April 8, 2020, he filed a public-records request seeking a digital spreadsheet copy of the Electronic Death Reporting System;
{¶4} On May 6, 2020, ODH's press secretary informed him that ODH "could not provide the requested record because it did not exist and that the data it contains is not a record that documents the functions or operations of the agency;"
{¶5} On June 2, 2020, ODH's senior counsel "wrote that retrieving the database would require reprogramming [ODH's] computers and software to create the requested records, a duty not incumbent on the agency under ORC 149.43;"
{¶6} On October 5, 2020, ODH's press secretary informed Ludlow that ODH would provide a copy of the death certificate database;
{¶7} On October 19, 2020, ODH's press secretary "provided requested portions of the death certificate database, which did not include names, addresses, and dates of birth; ODH's press secretary "wrote that such information was exempt from release and redacted as 'personal information'" pursuant to R.C. 3701.17. But, according to Ludlow, ODH "did ultimately provide dates of birth, but continued to withhold names and addresses;" and
{¶8} On January 26, 2021, he submitted this request: "Please provide a copy of the Electronic Death Reporting System database - in digital spreadsheet form - of all death certificates delivered to the department from March 1, 2020 to Jan. 26, 2021 by all local health departments in the state."
{¶9} The Court referred the case to mediation. After mediation failed to successfully resolve all disputed issues between the parties, the Court returned the case to the Special Master's docket. ODH thereafter filed a response to Ludlow's complaint and moved to dismiss the complaint.
{¶ 10} On June 8, 2021, the Special Master issued a Report and Recommendation (R&R). The Special Master recommended denying ODH's motion to dismiss. (R&R, 2.) And the Special Master "recommend[ed] the court order respondent to provide requester with the requested records," and "further recommended 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. It is recommended costs be assessed to respondent." (R&R, 2, 12.)
{¶11} On June 23, 2021, ODH filed written objections to the Special Master's R&R. Five days later Ludlow filed a response in opposition. II. Law and Analysis
A. Legal Standard
{¶12} R.C. 2743.75(F)(2) governs objections to a special master's report and recommendation. Pursuant to R.C. 2743.75(F)(2), either party "may object to the report and recommendation within seven business days after receiving the report and recommendation by filing a written objection with the clerk and sending a copy to the other party by certified mail, return receipt requested. * * * If either party timely objects, the other party may file with the clerk a response within seven business days after receiving the objection and send a copy of the response to the objecting party by certified mail, return receipt requested. The court, within seven business days after the response to the objection is filed, shall issue a final order that adopts, modifies, or rejects the report and recommendation."
B. ODH's Objections
{¶ 13} R.C. 2743.75(F)(2) requires any objection to a report and recommendation to be "specific and state with particularity all grounds for the objection." ODH presents its objections in a narrative format. ODH asserts that (1) the information sought by Ludlow includes Protected Health Information, (2) the R&R incorrectly found that R.C. 3701.17 does not apply to death information, and also conflated death certificates with death information. (3) R.C. 149.43 does not entitle Ludlow to the Protected Health Information he seeks, regardless of the existence of R.C. 3705.23, (4) ODH is not required to create a new document to comply with R.C. 149.43, and (5) ODH fulfilled its obligation under R.C. 149.43 by providing Ludlow with the Secure Mortality Module dictionary to allow Ludlow to revise his request.
{¶ 14} The Court finds that, notwithstanding ODH's objections, the Special Master identified the pertinent issues and reached the correct legal determination based on the ordinary application of statutory law and case law, as they existed at the time of the filing of the complaint. Pursuant to R.C. 3701.17(A)(2), as used in R.C. 3701.17, protected health information
means 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.
The Court agrees with the Special Master's view that "[w]hat little case law exists for R.C. 3701.17 involves its application to health agency records of living individuals[] * * * Indeed, if R.C. 3701.17 did apply squarely to death certificate contents then ODH and local registrars have been violating the statute each time they release a certified death certificate pursuant to R.C. 3705.23(A)." (R&R, 9.) Moreover, to fulfill Ludlow's request ODH was not required to search through voluminous documents or create a new document by searching for and compiling information from existing records to fulfill Ludlow's public-records request. Rather, ODH was required to use its existing software, input search criteria, and produce a report with information that was readily available. ODH's suggestion that this Court should follow Patrick Walsh v. Ohio Dept. of Health et al., C.P. Franklin No. 20 CV 006561 (February 26, 2021) to support ODH's claim that Ludlow seeks "protected health information" is unpersuasive, as that case does not constitute binding precedent, and because this Court has previously rejected the holding in Walsh. See WCPO-TV v. Ohio Dept. of Health, Ct. of CI. No. 2020-00513PQ, 2021-Ohio-1566, U 19. In addition, Walsh is currently on appeal to the Tenth District Court of Appeals. (10th Dist. Franklin No. 21 AP-000109).
In Gulf stream Aero. Corp. v. Camp Sys. Internatl., S.D.Ga. No. 405CV018, 2007 U.S. Dist. LEXIS 64142, at *6-7 (Aug. 30, 2007), quoting Charles A. Sullivan, On Vacation, 43 Hous. L. Rev. 1143, 1146-48 (footnotes omitted), a federal district court discussed the meaning of precedent:
[T]he law uses "precedent" in two very different ways. In the weaker sense, "precedent" merely refers to any authoritative pronouncement of a court that other courts have an obligation to respect; in this sense, any court decision may be a "persuasive precedent," although precisely what that means-how respectful a court must be-is unclear. The second, and stronger, sense is "binding precedent," which means that a lower court, subject to the appellate jurisdiction of the higher court, is required to follow the decisions of that court, or, more accurately, to follow the "holdings" of that court. This is sometimes called the doctrine of vertical precedent;
"stare decisis" is also sometimes used to refer to binding precedent in this sense, although it is often used to refer only to what has been called horizontal precedent, the obligation of a court to follow its own precedents.
{¶ 15} Additionally, the Court agrees with the Special Master's view that death certificate data is made expressly public by R.C. 3705.23(A). Finally, although ODH may have complied with R.C. 149.43(B)(2)'s requirement to provide Ludlow with an opportunity to revise his request, the Court does not agree with ODH's contention that it fulfilled its obligation under R.C. 149.43.
III. Conclusion
{¶ 16} The Court overrules ODH's objections. The Court adopts the Special Master's Report and Recommendation. The Court ORDERS ODH to forthwith provide Ludlow with the requested records in accordance with the Special Master's recommendation. Ludlow is entitled recover from ODH the amount of the filing fee of twenty-five dollars and any other costs associated with the action that are incurred by Ludlow, but Ludlow is not entitled to recover attorney fees. Court costs are assessed to ODH. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.