The Ohio Supreme Court is considering answer a question that’s lingered since the pandemic – is the information on a death certificate a public record?
The case came to the court through a lawsuit filed by now-retired Columbus Dispatch reporter Randy Ludlow. While tracking COVID in 2020 and 2021, he filed several public records requests for information from death certificates, which the Ohio Department of Health was compiling into a database. He eventually received death certificate information without names or addresses, which ODH said were not public information.
The Ohio Court of Claims, which settles disputes about public records, sided with Ludlow, but the appeals court ruled for the state.
His attorney Darren Ford told the Ohio Supreme Court lawmakers have used different terminology to refer to somebody who is dead versus somebody who is living. So he said they've been clear in never giving dead people privacy rights.
“Cause of death, the reason the government is saying this person died, which should be subject to verification by the press or other private individuals – that is not protected health information," Ford said.
Justice Pat DeWine asked, "That is your understanding of the law - that there's no protections, so once someone dies, their health information is not protected at all?"
"Correct," responded Ford. "If a person is dead and medical information about that person is created, such as an autopsy report, that information is not protected."
But ODH’s attorney Steven Carney said the law does protect information about dead people.
"The health privacy laws in plain terms say so with no exception for death," Carney said. "And the possibility of limited workarounds to get similar info from individual records from local offices simply confirms that this information, this avenue, is not available for mass data mining."
Justice Jennifer Brunner noted the public records laws were created to safeguard transparency so corruption can be investigated.
"If Mr. Ludlow as a as a representative of a newspaper, wants to check those records for himself to make sure that the Department of Health is telling the truth, why can't he do that?" Brunner asked.
"Whether it's sensitive issues, whether it's any number of reasons the legislature has made that choice to let the dead rest in peace and say, we're not going to spell out all of your data, at least not in this mass data form," Carney said. "We want people to know what the government is doing. But we don't want to use openness to government records to be a gateway to see all the private information of your fellow citizens."
The Ohio Department of Health reports as of Oct. 26, 42,760 Ohio residents have died of COVID.
