Ohio high court orders partial release of toxicity records

The Ohio Supreme Court ruled Thursday that with respect to agency records related to lead poisoning, only portions that do not have “personal identifying information” can be released under the Ohio Public Records Act.

The court reversed a lower court’s order to the Cuyahoga Metropolitan Housing Authority to provide O’Shea and Associates, an Ohio law firm, with 15 years’ worth of records — with only social security numbers redacted — documenting instances of child lead exposure in agency-owned or operated housing. The two types of records at issue — questionnaires completed by individuals who reported elevated lead levels in their own or their children’s blood, as well as medical release authorization forms used to obtain children’s medical records — contained personal information that was not subject to release under the Ohio Public Records Act, the court ruled.

As an initial matter, the court noted that those records met the first two requirements for records subject to the Public Records Act: they were “documents, devices, or items,” and were “created or received by or coming under the jurisdiction of [the agency].”

However, the court found that the third requirement — that the records “serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office” — was not fully satisfied.

Specifically, the court found that “personal identifying information” in the documents, including the names of parents and children, telephone numbers, dates of birth, and places of employment, did not “serve to document” the agency’s activities, and therefore was not subject to release under the Public Records Act.

However, the court ruled that the remainder of the information in the records was subject to release, such as the residents’ addresses and the hazards present in the homes.

“Release of this information would help to hold [the agency] accountable for its statutory duty of reducing or eliminating any lead-related hazard in its residences and would reveal the agency’s success or failure in doing so, without requiring release of much of the residents’ personal information,” said the court.

The agency unsuccessfully argued against release of any of the sought records on several other grounds.

The court first rejected its claim that the firm’s records request was ambiguous and overbroad, and that it erroneously asked for information – which the agency was not required to provide – rather than records. Looking to the context of the request, the court noted that the agency had not raised these issues in its initial response to the request, but had done so only after the firm sued for the records. Therefore, the court upheld the firm’s request as having been appropriate.

The court also rejected the agency’s contentions that the federal Privacy Act applied to prevent disclosure of the records, as the court concluded that law applies only to federal agencies. Further, the court found inapplicable exemptions in the Ohio Public Records Act for medical records, trial preparation materials, or investigatory work product, as these records were neither generated in the process of medical treatment nor in anticipation of litigation.

However, the court did agree with the agency that the firm was not entitled to attorney fees – which the lower court had awarded – on the basis that the firm was “not entitled to most of the personal identifying information contained in these records.” Additionally, the court denied attorney fees because Michael O’Shea, the principal attorney at the firm, had done the work on the firm’s case, and the firm “introduced no evidence that it either paid or was obligated to pay its own counsel attorney fees.”

In his partial dissenting opinion, Judge Paul Pfeifer argued the firm was entitled to attorney fees.

“[The agency] fought tooth and nail to keep from having to produce the documents at all,” he wrote. “They were not arguing for redactions, but for full-scale withholding of the documents O’Shea sought. [The agency] was wrong."

Additionally, Pfeifer noted that the agency had not shown that Michael O’Shea was a salaried employee in the firm, and, “[a]s an attorney in a law firm, his time is his livelihood, and [the agency] wasted a lot of it.”

Attorneys for both parties could not immediately be reached for comment.