Two significant public records cases that will impact municipalities were recently decided and both proved to be very important decisions in this area of law. One case upheld punitive damages against the City of Akron for destruction of public records. This should have a significant impact on the records retention practices of all public offices. The other case, involving HIPAA and medical records, found that certain city health department records were not protected from disclosure. This case provides valuable guidance to any public agency that maintains health information.

The federal court system has also contributed to the recent activity in the public records law arena. A federal district court found that an invasion of privacy claim could be based upon release of pre-employment psychological evaluations despite an Ohio Supreme Court opinion finding that such evaluations are public records.

Following are summaries of these three cases, as well as several others decided by the courts in recent months.

Record Destruction

In a split decision, the Ohio Supreme Court ruled that a record, for purposes of assessing a civil forfeiture for the destruction of records, could be a single document even when part of a larger compilation of records. The case arose in the federal court, where a jury awarded less than $1,000 for compensatory time violations claimed by two city workers. The jury also found that the City destroyed certain comp-time records, specifically one compilation of comp-time sheets for each employee and one tally book. The jury counted each individual page that was used to create the compilations at issue and awarded damages under the Ohio public records laws of $1,000 per “record.” By the jury’s count, the City destroyed 860,000 “records” resulting in a civil award of $860,000.

The City appealed this portion of the verdict, arguing that only three “records” were involved. The City maintained that each employee’s comp-time record was a single record, even though it had been compiled from thousands of individual documents. Likewise, the City maintained that the tally sheet was a single record. The federal court asked the Ohio Supreme Court to rule on the meaning of the term “record.”

In a 4-3 decision, a majority of the Ohio Supreme Court disagreed with the City and upheld the jury verdict. The Court ruled that a record as used in R.C. 149.351 “may be within a larger file of documents as well as a compilation of documents.” The Court further ruled that any document, whether in draft or final form, could constitute a record under the law. A minority of the Court dissented, pointing out that the outcome was unduly harsh, especially since the statute permitted civil forfeitures even when the destruction of records is inadvertent1. This case highlights the need for every public entity to properly adopt and carefully follow a good public records retention policy.

City Health Department Citations and Risk Assessment Reports

The Cincinnati Health Department was sued by the Cincinnati Enquirer for refusing to release lead contamination notices it had issued to property owners of the residences of children whose blood tests indicated high lead levels. The City maintained that the federal Health Insurance Portability and Accountability Act (HIPAA) prohibited release of the records because they contained individually identifiable health information. Specifically, the lead contamination notices revealed that a child with an elevated lead level resided at the listed address. The child’s name, age, or other identifying information was not included in the citation, nor were specific blood test results. The City argued that even this amount of information could be used to identify the specific child with a health problem, and thus was protected information under HIPAA.

The Ohio Supreme Court ruled that this limited amount of information included in the citation did not constitute protected “health information” under HIPAA. A nondescript reference to a child with an unspecified lead level was not, the Court found, sufficient to trigger HIPAA protection.

The Court also highlighted the “problem of circular reference” posed by the case. The Ohio Public Records law creates an exception for records, the release of which are prohibited by federal law. At the same time, HIPAA allows disclosure of even protected health information if required by state law. As such, the Court held that even if the lead contamination notices contained protected health information under HIPAA, the records would still be “public records” and subject to disclosure under Ohio law2.

Executive Privilege

The Supreme Court acknowledged the validity of executive privilege in a case challenging the Governor’s refusal to release certain internal communications sought through a public records request. The case arose after the Governor’s Office produced a large number of records in response to a public records request, but refused to produce certain weekly reports, which are prepared for the Governor by cabinet-level directors and the Governor’s top staff.

A suit was filed seeking to force disclosure of the weekly reports. The Governor argued that some of the reports, or portions of them, were exempt from disclosure under the executive privilege and deliberative process privilege. This privilege is wellestablished in federal law and protects communication by the President and top executive officials in order to facilitate the frank and candid exchange of information needed to permit informed decision-making.

While a number of other state courts have recognized a gubernatorial privilege, the Ohio courts had never before addressed the issue. In a 5-2 opinion, a majority of the Ohio Supreme Court agreed with the Governor, finding that a qualified privilege protects communication to or from the Governor when the communication is made for the purpose of fostering informed and sound gubernatorial deliberations, policymaking, and decision-making.

The Court went on to establish procedures by which an individual making a public records request could overcome the privilege. In order to overcome the privilege, a requester must demonstrate a particularized need for the records that outweighs the public’s interest in protecting the confidentiality of the Governor’s most sensitive communications. Having found that a gubernatorial communications privilege exists in Ohio law, the Court then instructed the parties to follow the procedures it established in order to invoke the privilege and then to attempt to overcome it3.

Pre-Employment Psychological Evaluations

In a case arising from the federal court system, a police officer filed suit against his employer claiming unlawful disclosure of his personal information and invasion of privacy after the results of the officer’s pre-employment psychological evaluation appeared in a newspaper story. The City argued that, even if it had released the information, it could not be liable for unlawful disclosure or invasion of privacy on the basis of a 1995 Ohio Supreme Court case. The 1995 case held that preemployment psychological evaluations are not “medical records,” thus are subject to release under the Ohio public records law.

The federal court ruled in favor of the officer on this point. Although pre-employment psychological records may not be public records under Ohio law, the Court found that they were “confidential medical records” under the Americans with Disabilities Act. The Court further found that federal law pre-empted state law in this regard and concluded that the officer’s pre-employment evaluation was a confidential record not subject to disclosure4.

Scientific Research and Intellectual Property Records

The Ohio Supreme Court recently examined the intellectual property exception to the public records law in a case involving medical research records at The Ohio State University. In order to qualify as “intellectual property records” that are exempt from Ohio public records law, the records must not have been publicly released or published. The records at issue in this case had been loaned to other scientists and research trainees and were shown to other scientists at medical conferences. However, this disclosure was limited in scope and the University took other steps to protect the records. The Court concluded that based on the facts presented, the records at issue had not been “publicly released,” thus remained the confidential intellectual property of the University5.

Redacting Social Security Numbers

The Ohio Supreme Court recently reiterated its earlier holding that social security numbers are not public records. In this case, the Court went on to stress that public officials must have a reasonable opportunity to review records and redact confidential information before disclosure. A clerk of courts refused to allow immediate inspection of certain records that contained social security numbers of defendants in the court system. The public defender brought suit, alleging that the clerk could not delay disclosure in order to redact social security numbers. The Supreme Court sided with the clerk and ruled that the legal requirement to make records “promptly” available was not violated when the Clerk redacted social security numbers before allowing inspection6.

Footnotes

1. Kish v. City of Akron, ____ Ohio St.3d. ____, 2006-Ohio- 1244, 2006 WL 759768 (2006).

2. State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, 844 N.E.2d 1181 (2006).

3. State ex rel. Dann v. Taft, ____ Ohio St.3d ____, 2006-Ohio- 1825, ____ WL ____ (2006).

4. Lentz v. City of Cleveland, 410 F.Supp.2d 673 (N.D. Ohio 2006).

5. State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006- Ohio-903, 843 N.E.2d 174 (2006).

6. State ex rel. Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, 842 N.E.2d 508 (2006).

Reprinted from Finley’s Ohio Municipal Service, with the permission of the publisher and copyright owner, West Group.