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Court Holds Personal Identifying Information in Lead Poisoning Reports Must be Redacted Before Documents Disclosed

But Affirms Parts of Requested Housing Authority Records Are Subject to Disclosure

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2010-1536.  State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., Slip Opinion No. 2012-Ohio-115.
Cuyahoga App. No. 93275, 190 Ohio App.3d 218, 2010-Ohio-3416.  Judgment of the court of appeals affirmed in part and reversed in part, and cause remanded.
O'Connor, C.J., and Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer and O'Donnell, JJ., concur in part and dissent in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-115.pdf

Video clip View oral argument video of this case.

(Jan. 19, 2012) The Supreme Court of Ohio today partially affirmed and partially reversed a decision of the 8th District Court of Appeals that ordered the Cuyahoga Metropolitan Housing Authority (CMHA) to provide copies of forms documenting possible lead poisoning of children residing in CMHA housing units to a Cleveland law firm that sought those documents under the state’s Public Records Act.

In a 5-2 decision authored by Justice Evelyn Lundberg Stratton, the Court upheld the court of appeals’ holding that CMHA must comply with a public records request submitted by O’Shea & Associates seeking copies of  questionnaires completed by CMHA residents whose children were found to have elevated levels of lead in their blood, and must also provide copies of  forms completed by affected children’s parents or guardians authorizing release of medical information.

The Court held further, however, that personal indentifying information included in the requested documents, including the names and dates of birth of the affected children and their siblings; the names, social security and phone numbers and places of employment of the children’s parents or guardians; and the identities of other care givers is not subject to disclosure because that information does not “document the organization, functions, policies, decisions, procedures or operations” of CMHA. 

Pursuant to the latter holding, the Court ordered that all such personal information be redacted (blacked out) before the requested documents are provided to O’Shea. The Court also reversed the portion of the 8th District’s decision awarding O’Shea $7,537.50 in attorney fees.

Writing for the Court, Justice Stratton rejected arguments by CMHA that the requested documents were exempt from disclosure under exceptions to the Public Record Act that apply to medical records, trial-preparation records, and records the disclosure of which is prohibited by a state or federal law.

Citing the Supreme Court of Ohio’s 2006 decision in State ex rel. Cincinnati Enquirer v. Daniels, which held that city health department citations issued to property owners for lead-paint violations were subject to disclosure as public records, Justice Stratton wrote: “The forms that CMHA requires its residents to complete further CMHA’s statutory duty to ‘provide safe and sanitary housing accommodations to families of low income within that district.’ Like the lead-citation notices and assessment reports in Daniels, the residence addresses and the substantive information concerning general, nonidentifying information, lead-based paint and lead-contaminated dust hazards, water-lead hazards, lead-in-soil hazards, occupational or hobby hazards, and child-behavior risk factors would all be pertinent to an analysis of whether CMHA took steps to provide safe housing in specific CMHA dwellings with possible lead hazards. Release of this information would help to hold CMHA 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.” 

“The lead-citation notices and lead-risk-assessment reports that we ordered disclosed in Daniels contained residence addresses. As in Daniels, the addresses contained in the completed lead-poisoning questionnaires and releases here help the public monitor CMHA’s compliance with its statutory duty to provide safe housing. Therefore, the residence addresses in these completed forms are obtainable under R.C. 149.43.”

With regard to personal identifying information about CMHA residents disclosed in the agency’s lead hazard questionnaire and medical authorization form, Justice Stratton cited a line of prior Supreme Court of Ohio decisions including State ex rel. McCleary v. Roberts (2000), State ex rel. Beacon Journal Publishing Co. v. Bond (2002), and State ex rel. Dispatch Printing Co. v. Johnson (2005).  In each of those cases, Justice Stratton wrote,  the Court held that this type of information is not subject to disclosure under the Public Records Act because it does not “serve to document the organization, functions, policies, decisions, procedures or operations” of a public office.

Justice Stratton wrote: “Here, as in McCleary, the questionnaire and medical-release authorization contain, in part, identifying information—names, birth dates, social-security and telephone numbers, and family information.  The lead-citation notices and lead-risk-assessment reports at issue in Daniels did not contain the specific identifiable information addressed in McCleary. Therefore, the court of appeals erred in applying Daniels as authority to require disclosure of the entire completed questionnaire and authorization, subject only to redaction of social-security numbers, when the documents contain specific personal, identifying information.”

“... Based on the foregoing, we hold that the personal identifying information, such as the names of parents and guardians, their social-security and telephone numbers, their children’s names and dates of birth, the names, addresses, and telephone numbers of other caregivers, and the names of and places of employment of occupants of the dwelling unit in CMHA lead-poisoning documents, including the questionnaire and authorization, do not serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the CMHA and are not obtainable under the Public Records Act. However, the remainder of the completed forms are subject to disclosure under R.C. 149.011(G) and 149.43.  If any question should arise about whether any portion of the completed forms discloses personally identifiable information, the court of appeals on remand will determine which portions should be redacted and not be subject to disclosure.”

In reversing the court of appeals’ award of attorney fees, Justice Stratton noted that that award was premised in part on the lower court’s  finding that O’Shea was entitled to all of the documents he sought rather than the limited, redacted records to which the Supreme Court has found the firm has a valid claim.  She also noted that the firm was represented by its own principal attorney, Michael O’Shea, and had introduced no evidence that it had paid or was obligated to pay fees to one of its own  members.

Justice Stratton’s opinion was joined by Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.

Justice Paul E. Pfeifer entered a separate opinion, joined by Justice Terrence O’Donnell, in which he concurred with majority’s holding that O’Shea was entitled to the requested records with personal information about CMHA residents redacted, but dissented from the Court’s reversal of the award of attorney fees.

Justice Pfeifer wrote: “The majority justifies its denial of an award of attorney fees in part by stating, ‘O’Shea is not entitled to most of the personal identifying information contained in the records.’  However, CMHA fought tooth and nail to keep from having to produce the documents at all. They were not arguing for redactions, but for full-scale withholding of the documents O’Shea sought.  CMHA was wrong.”

“Secondly, the majority states that the firm ‘introduced no evidence that it either paid or was obligated to pay its own counsel attorney fees.’ ...  Michael O’Shea is not in-house counsel for his law firm; he is the principal partner at the firm.  CMHA makes no argument that he is a salaried employee of the law firm. As an attorney in a law firm, his time is his livelihood, and CMHA wasted a lot of it. ... I would not overturn the decision by the court of appeals to award attorney fees in this case.”

Shawn W. Maestle, 216.241.6602, for the Cuyahoga Metropolitan Housing Authority.

Michael J. O'Shea, 440.356.2700, for O'Shea & Associates LPA.