Dissell v. Cleveland

[Cite as Dissell v. Cleveland, 2018-Ohio-5444.]

RACHEL L. DISSELL Case No. 2017-00855PQ

Requester Special Master Jeffery W. Clark

v. REPORT AND RECOMMENDATION

CITY OF CLEVELAND,

Respondent

{¶1} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of
records under R.C. 2743.75 if the court of claims determines that a public office has
denied access to public records in violation of R.C. 149.43(B). The policy underlying the
Act is that “open government serves the public interest and our democratic system.”
State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20.
Therefore, the Act is construed liberally in favor of broad access, and any doubt
is resolved in favor of disclosure of public records. State ex rel. Glasgow v.
Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13.
{¶2} On June 26, 2017, requester Rachel Dissell, a reporter for The Plain Dealer,
sent respondent City of Cleveland an email containing the following public records
request:

For Jan 1, 2016 – Dec. 31, 2016 and for Jan. 1, 2017 through June 1,
2017 the following electronically collected EMS and Cleveland Division of
Fire information:
CAD (Computer Aided Dispatch) records for calls where Cleveland EMS
and/or Cleveland Fire Department units were dispatched for opioid
overdose calls, including heroin, synthetic opioids, fentanyl, carfentanil or
opioid mixtures that include marijuana or [sic]
(Complaint at 3.) On August 9, 2017, Cleveland Public Records sent a response stating:
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In response to your public records request, there are no responsive records
because the City generally cannot determine whether an incoming 911
emergency call is an opioid-related call, a prerequisite to providing the requested
CAD reports.
Id. The same day, Dissell amended her request as follows:

For Jan 1, 2016 – Dec. 31, 2016 and for Jan. 1, 2017 through August 1,
2017 the following electronically collected EMS/Cleveland Division of Fire
or Cleveland Police Department records:
Any records that document Cleveland EMS/ Cleveland Fire Department or
Cleveland Police Department units dispatched or called to respond to opioid
related overdose calls, including heroin, synthetic opioids, fentanyl, carfentanil or
opioid mixtures that include marijuana or cocaine.
Please include the date and time of the call, location or address of the call,
neighborhood (if collected), on scene disposition and/or non-patient identifying
narrative.

(Id. at 2.)
{¶3} On October 19, 2017, Dissell filed a complaint under R.C. 2743.75 alleging
denial of access to public records by the City in violation of R.C. 149.43(B). The case
was referred to mediation, and on July 2, 2018, the court was notified that the case was
not fully resolved and that mediation was terminated. The City did not file a timely
response pursuant to R.C. 2743.75(E)(2). In response to an order of the special master,
the City filed an answer stating in full:
[R]espondent * * * denies the allegations in the Complaint and further avers that
all non-privileged documents have been produced. Respondent requests that this
Complaint be dismissed with prejudice.

(Response). On August 10, 2018, Dissell filed a pleading describing the responsive
computer-aided dispatch (CAD) records she believed the City had not produced. (Reply
at 2.) On September 9 and October 12, 2018, respondent filed supplemental responses,
and on October 15, 2018, Dissell filed a second reply. On November 13, 2018, the City
filed responsive EMS/Fire CAD records under seal. On November 14, 2018, Dissell filed
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a copy of police event summaries received from the City during litigation. On
November 30 and December 4, 2018, the City filed additional supplemental responses.
Suggestion of Mootness
{¶4} The City asserts that the claim as it pertains to police department records is
moot “because the responsive documents have been produced.” (Sept. 9, 2018 Supp.
Response at 1, 3.) The City has provided Dissell with “Cleveland Police Department
event summaries for suspected opioid calls” for September to December 2016, and
January to August 2017. (Oct. 12, 2018 Supp. Response at 2; Second Reply,
Attachment.) The City explains that it provided summaries only from September 2016
forward because the police department did not code suspected drug overdose calls in
its CAD system prior to that date. (Id.) Dissell provides no evidence to the contrary.
{¶5} In an action to enforce R.C. 149.43(B), a public office may produce the
requested records prior to the court’s decision, and thereby render the claim for
production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878,
950 N.E.2d 952, ¶ 18-22. I find that Dissell’s request for police dispatch records is moot
to the extent that the responsive police department event summaries have been
provided.
Modified Request
{¶6} No discussion or revision of a public records request during litigation relates
back to the claim stated in the complaint. Even if parties agree to waive the mediation
communication privilege, revision can serve only to establish admission, waiver, or
mootness. As noted above, the records provided by the City during litigation did
establish that a portion of the request is moot.
{¶7} However, there can be no cause of action based on failure of an office to
provide records in accordance with R.C. 149.43(B) without the specific request having
been made and denied prior to the complaint. See Strothers v. Norton, 131 Ohio St.3d
359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14; State ex rel. Bardwell v. Ohio Atty. Gen.,
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181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th Dist.). Judicial
resolution of the claim will thus be based on the August 9, 2017 public records request
set forth in the complaint. (Reply at 2.)
Burdens of Proof
{¶8} In an action to enforce Ohio’s Public Records Act (PRA), the burden is on
the requester to prove an alleged violation. In mandamus enforcement actions,
[a]lthough the PRA is accorded liberal construction in favor of access to
public records, “the relator must still establish entitlement to the requested
extraordinary relief by clear and convincing evidence.”
State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d
598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by
clear and convincing evidence. Hurt v. Liberty Twp., 5th Dist. Delaware No.
17CAI050031, 2017-Ohio-7820, ¶ 27-30.
{¶9} However, when a public office asserts an exception to the Public Records
Act, the burden of proving the exception rests on the public office. “Exceptions to
disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the
public-records custodian, and the custodian has the burden to establish the applicability
of an exception. A custodian does not meet this burden if it has not proven that the
requested records fall squarely within the exception.” State ex rel. Cincinnati Enquirer v.
Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of
the syllabus. Any doubt should be resolved in favor of disclosure. State ex rel. James v.
Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).
Overly Broad or Unduly Burdensome Requests
A request that is ambiguous or overly broad may be denied.
If a requester makes an ambiguous or overly broad request or has
difficulty in making a request for copies or inspection of public records
under this section such that the public office or the person responsible for
the requested public record cannot reasonably identify what public records
are being requested, the public office or the person responsible for the
requested public record may deny the request.
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R.C. 149.43(B)(2). Accordingly, “it is the responsibility of the person who wishes to
inspect and/or copy records to identify with reasonable clarity the records at issue.”
State ex rel. Zidonis v. Columbus State Cmty. College, 133 Ohio St.3d 122, 2012-Ohio-
4228, 976 N.E.2d 861, ¶ 21-22. Determination of whether an office has properly denied
a request as ambiguous or overly broad is based on the facts and circumstances in
each case. Id. at ¶ 26.
{¶10} The City did not object to Dissell’s request as overly broad prior to the filing
of the complaint, advising her only that “there are no responsive records because the
City generally cannot determine whether an incoming 911 emergency call is an opioid-
related call, a prerequisite to providing the requested CAD reports.” (Complaint at 3.)
The City also did not raise overbreadth in its first response to the complaint.1 Instead,
the City endeavored to satisfy part of the request by providing Dissell with the available
level of responsive data – CAD event summaries for all suspected drug overdose calls
handled by Cleveland PD within the date range. (Oct. 12, 2018 Supp. Response at 2).
The City likewise retrieved CAD event summaries for suspected overdose calls handled
by Cleveland EMS/Fire (filed under seal), but argues that the EMS/Fire records are
exempt from disclosure pursuant to HIPAA and a court protective order. Because the
City chose to respond to the request, I find overbreadth inapplicable to the extent that
the City has identified responsive records. I recommend that the court proceed to
determine the other defenses raised.
Improper Request (In Part)
{¶11} A request is proper to the extent that a public office’s computer is
programmed to produce desired information. State ex rel. Scanlon v. Deters, 45 Ohio
St.3d 376, 379, 544 N.E.2d 680 (1989). Dissell requested “[a]ny records that document

1The failure to raise a defense in an office’s initial explanation for denial “shall not preclude the public office or the
person responsible for the requested public record from relying upon additional reasons or legal authority in
defending an action commenced under division (C) of this section.” R.C. 149.43(B)(3).
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Cleveland EMS/ Cleveland Fire Department or Cleveland Police Department units
dispatched or called to respond to opioid related overdose calls.” The City provided
Dissell “with Cleveland Police Department event summaries for suspected opioid
overdose calls” within a larger CAD report of all drug overdose calls. (Oct. 12, 2018
Supp. Response at 2; Dec. 3, 2018 Moore Aff., Exh. A.) The event summaries include
Dissell’s requested content as to the units dispatched, the date and time of call, and the
location or address of call. The City refers to these printouts as the “responsive
documents” (Oct. 12, 2018 Supp. Response at 4) which it produced in satisfaction of the
request for police dispatch records. (Response; Sept. 9, 2018 Supp. Response at 1.)
{¶12} However, a request is improper to the extent it seeks a printout that the
public office’s computer was not programmed to produce. Scanlon, supra. The City
attests that the general code “SDO” for suspected drug overdose does not distinguish
between types of overdoses. (Sept. 6, 2018 Supp. Response at 2-3; First Carlton Aff. at
¶ 4-5; Oct. 12, 2018 Supp. Response at 8.) The City asserts that producing a list of only
opioid-related calls would require the City to start with the printout of all suspected drug
overdose calls and further research each call to revise the list down to those which were
opioid-related. (Sept. 6, 2018 Supp. Response at 2-3; Oct. 12, 2018 Supp. Response at
9.) The City correctly asserts that it is not required to create new documents in response
to a public records request. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33,
2006-Ohio-6365, 857 N.E.2d 1208, ¶ 30; Salemi v. Cleveland Metroparks, 8th Dist.
Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 28-30.
{¶13} In State ex rel. Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-
8447, 76 N.E.3d 1171, Shaughnessy requested the Cleveland PD to search its incident
report database and provide a list of assaults within a geographical area that included
only victims who sought medical care at a hospital and were not victims of domestic
violence. Id. at ¶ 10. As here, Cleveland could have denied and sought revision of the
request because the database was not programmed to produce the additional victim
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details. Instead, as here, Cleveland provided Shaughnessy with the existing list of
incident reports that referred to any victim of assault. Id. at ¶ 11.
{¶14} Dissell disputes the City’s inability to print out only opioid-related calls from
the CAD system, stating that she “has learned that there is initially a code entered that
encompasses all overdoses, after which medics on scene update the CAD and notify
CPD if they administer naloxone and/or it is a confirmed opioid overdose.” (Reply at 2.)
However, Dissell offers no supporting evidence. Where an office attests that requested
records do not exist, the requester has the burden to establish that the records do exist
by clear and convincing evidence. State ex rel. McCaffrey v. Mahoning Cty.
Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 22-26.
Even a reasonable and good faith belief by a requester, based only on inference and
speculation, does not constitute the clear and convincing evidence necessary to
establish that responsive documents exist. Id.; State ex rel. Gooden v. Kagel, 138 Ohio
St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 8. I find that Dissell has not shown that
records specifying only opioid-related drug overdose calls existed for the time period in
the requests.
{¶15} By not denying the request as overly broad and failing to provide an
opportunity to revise the request, Shaughnessey at ¶ 16, and then identifying the best
existing data (Response; Sept. 6, 2018 Supp. Response at 1, 3; Oct. 12, 2018 Supp.
Response at 4), the City committed to providing records identified as responsive. See
State ex rel. Bott v. Ohio Dept. of Nat. Res., 10th Dist. Franklin No. 12AP-448, 2013-
Ohio-5219, ¶ 19, 34-41. Cleveland produced event summaries from its CAD databases
showing calls for suspected drug overdose, a feature the system is programmed to
produce. I find that the request was not ambiguous or overly broad to the extent it
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resulted in the City’s identification of responsive event summaries that included opioid-
related calls.2
{¶16} I find that denial of the portion of the request that would require an event by
event review to flag opioid involvement is proper because the CAD system is not
programmed to produce output limited to specific drugs. I find that the City is obligated
to provide the Fire/EMS CAD event summaries that it identified as responsive to the
request.
Possible Inaccuracy of Records Does Not Create an Exception
{¶17} The City notes that “the use or non-use of this code is not always accurate”
for several reasons. (Oct. 12, 2018 Supp. Response at 7.) The City cites no authority for
the proposition that it may withhold records solely because it believes the records are
inaccurate, and I find that this admission has no bearing on the request.
Health Information Portability and Accountability Act (HIPAA)
{¶18} The confidentiality provisions of the federal Health Information Portability
and Accountability Act (HIPAA) apply to “protected health information” obtained by a
“covered entity,” i.e., health plan, health care clearinghouse, or health care provider. 42
U.S.C. 1320d; 45 C.F.R. 160.103. Respondent asserts that street addresses in the
event summaries must be redacted pursuant to HIPAA.
{¶19} At the outset, even were Cleveland EMS/Fire a HIPAA “covered entity” and
the dispatch records of EMS/Fire units “protected health information,” HIPAA does not
supersede the Ohio Public Records Act. In State ex rel. Cincinnati Enquirer v. Daniels,
108 Ohio St.3d 518, 2006-Ohio-1215, 844 N.E.2d 1181, ¶ 25-26, the Ohio Supreme
Court found that,

2Even were the court to find that the entire request is ambiguous or overly broad, it would not preclude Dissell from
making a new request for these existing event summaries. The parties are encouraged to utilize the tools provided by
R.C. 149.43(B)(2) through (7) in negotiating future requests. See State ex rel. Morgan v. Strickland, 121 Ohio St.3d
600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 15-20; Bott at ¶ 52.
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A review of HIPAA reveals a “required by law” exception to the prohibition
against disclosure of protected health information. With respect to this
position, Section 164.512(a)(1), Title 45, C.F.R. provides, “A covered
entity may * * * disclose protected health information to the extent that
such * * * disclosure is required by law * * *.” (Emphasis added.) And the
Ohio Public Records Act requires disclosure of records unless the
disclosure or release is prohibited by federal law. R.C. 149.43(A)(1)(v).
Hence, we are confronted here with a problem of circular reference
because the Ohio Public Records Act requires disclosure of information
unless prohibited by federal law, while federal law allows disclosure of
protected health information if required by state law.
The Court noted that the secretary of the Department of Health and Human Services
had explained that 45 CFR 164.512(a) was intended to preserve access to information
considered important enough by state or federal authorities to require its disclosure by
law, and that the federal Freedom of Information Act (“FOIA”) is one law requiring
disclosure of records under this exception to HIPAA protection. Id. at ¶ 27-28. The Court
then held:
Even if the requested [records] did contain “protected health information”
as defined by the Health Insurance Portability and Accountability Act
(“HIPAA”), and even if the Cincinnati Health Department operated as a
“covered entity” pursuant to HIPAA, the [records] would still be subject to
disclosure under the “required by law” exception to the HIPAA privacy rule
because Ohio Public Records Law requires disclosure of these reports,
and HIPAA does not supersede state disclosure requirements.
Id. paragraph two of the syllabus, see generally Id. at ¶ 19-28, 34. Under the “required
by law” exception, as interpreted in Daniels, I find that no content of the EMS/Fire event
summaries is subject to withholding under HIPAA.
{¶20} Even if HIPAA were applicable, the City does not cite any federal or Ohio
statute, regulation, or case law recognizing an agency providing transport/paramedic
services as a “covered entity” under 45 CFR 160.103. But see OR2003-8500, 2003 Tex.
AG LEXIS 9701. Nor has the City shown that street addresses to which units were
dispatched are “individually identifiable” health information as defined in 45 CFR
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160.103.3 Id. Finally, the code SDO reflects only that the caller identifies the reason for
his/her call as a suspected drug overdose (Moore Aff. at ¶ 4). It does not reflect a
medical professional’s history, diagnosis, prognosis, condition, or treatment information.
{¶21} This is not to say that street addresses could not be excepted under
different circumstances. If the addresses met the definition of a “medical record” under
Ohio law, R.C. 149.43(A)(1)(a) and (A)(3),4 then they would not be “public records” R.C.
149.43(A)(1). As such, they would be exempt under both Ohio law and under HIPAA,
because the conflict relied on in Daniels between the Ohio Public Records Act and
HIPAA would be removed. However, under Ohio law the records of “name, address,
age, location of the incident, nature and time of the call, and disposition of the patient”
on an EMS run sheet are not “medical records” as defined in R.C. 149.43(A)(3). 1999
Ohio Atty.Gen.Ops. No. 006; 2001 Ohio Atty.Gen.Ops. No. 041.
{¶22} I conclude as a matter of law that HIPAA does not apply to any portion of
the withheld records. Separately, I find that the City has not shown by clear and
convincing evidence that the records would fall squarely within HIPAA definitions and
terms.
Protective Order Does Not Qualify as Exception
{¶23} The rights of a public records requester are normally based on the law and
factual circumstances at the time of the request. State ex rel. Schneider v. Kreiner, 83
Ohio St. 3d 203, 208, 699 N.E.2d 83 (1998). Dissell’s public records request was made
on August 9, 2017. The City now asserts that a protective order it voluntarily entered
into5 over eleven months later justifies withholding the record:

3
Some locations in the event summaries are only street intersections. (Second Carlton Aff. at ¶ 10, under seal.)
4 149.43(A)(3) "Medical record" means any document or combination of documents, except births, deaths, and the

fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical
condition of a patient and that is generated and maintained in the process of medical treatment.
5 The parties in In re National Prescription Opiate Litigation stipulated to and petitioned the federal court for this order.
(Id., Exhibit C at 1.)
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On May 15, 2018, a protective order was entered in the matter captioned In re
National Prescription Opiate Litigation pending in the United States District Court
Northern Division bearing case number 1:17-md-02804, the Respondent is a
party. Exhibit C. Paragraph 69 of the protective order states that "[m]aterials that
have been designated as Confidential or Highly Confidential Discovery Material
shall not be provided or disclosed to any third party in response to a request
under any public records act..." Paragraph 10 of the protective order defines
"Confidential Information" to include, among other things, overdose records.
Consequently, Respondent is barred by the protective order from disclosing the
requested information.
(Supplemental Response at 12-13.)
{¶24} The Ohio Supreme Court holds that “[o]nce clothed with the public records
cloak, the records cannot be defrocked of their status.” State ex rel. Cincinnati Enquirer
v. Hamilton Cty., 75 Ohio St.3d 374, 378, 662 N.E.2d 334, 338 (1996). For example, the
mere fact that non-exempt public records later became relevant to criminal litigation did
not transform them into records exempt from disclosure. State ex rel. Dillery v. Icsman,
92 Ohio St.3d 312, 316, 750 N.E.2d 156 (2001).6 The City has not established that any
exception was applicable to the withheld records prior to the Order of May 15, 2018. I
find that the City was obligated at the time of the request to disclose the records, and
that the requested records, “clothed with the public records cloak” were not defrocked of
their status.
{¶25} Moreover, a non-disclosure clause in a voluntary agreement may not serve
as a public records exception. State ex rel. Findlay Publ. Co. v. Hancock Cty. Bd. of
Commrs., 80 Ohio St.3d 134, 137 (1997) (“A public entity cannot enter into enforceable
promises of confidentiality regarding public records.”); State ex rel. Sun Newspapers v.
Westlake Bd. of Edn., 76 Ohio App.3d 170, 173, 601 N.E.2d 173, 175 (8th Dist.1991). A

6 Despite this holding, properly worded statutory exceptions can protect copies of the public records of one public
office when in the hands of a separate public office, e.g., R.C. 109.57(D)(1)(a) (otherwise public arrest and
disposition records received by BCI&I pursuant to R.C. 109.57(A)(2) and 109.60 “are not public records”); or seal
existing public records in public offices, e.g., R.C. 2953.31 et seq. (sealing of certain convictions and arrests). See
also Tingler v. Ottawa Cty. Prosecutor’s Office, Ct. of Cl. No. 2017-00248-PQ, 2017-Ohio-8451, ¶ 7-9 and cases cited
therein.
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contractual promise of confidentiality with respect to an otherwise public record is void
ab initio. Teodecki v. Litchfield Twp., 9th Dist. Medina No. 14CA0085-M, 2015-Ohio-
2309, ¶ 23-25. See State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 401,
2015-Ohio-974, ¶ 32 (a writ of mandamus compelling the release of a public record is
sufficient to invalidate a contrary protective order). Compare, State ex rel. Cincinnati
Enquirer v. Bronson, 191 Ohio App.3d 160, 168, 2010-Ohio-5315, ¶¶ 5-6, 20 (12th
Dist.) (Even where a criminal “gag order” had been issued, the issuing court must find
that covered records were exempt from disclosure under one of the exceptions
specified in R.C. 149.43(A)(1)(a) through (aa)).
{¶26} Further, even if a protective order could constitute a valid exception, the
City is not barred by the terms of this protective order from disclosing the requested
information. Protective Order ¶ 69 applies only to “[m]aterials that have been designated
as Confidential or Highly Confidential Material.” However, ¶ 10 expressly states, “Public
records and other information or documents that are publicly available may not be
designated as Confidential Information.” Given the prohibition in ¶ 10 against
designating public records as Confidential Information, and the finding here that the
EMS/Fire event summaries are public records, ¶ 69 is inapplicable to the event
summaries. I find that the City fails to prove that any part of the event summaries falls
squarely within the wording of the protective order.
{¶27} Finally, even had the event summaries fallen within the four corners of the
protective order, the City has not identified a court rule or state or federal law
authorizing the order to serve as an exception to the Ohio Public Records Act. While
rules of practice and procedure established under the authority of Article IV of the Ohio
Constitution, are “state law” that may create exceptions to public records release, courts
must still determine, in each case, whether these or any other court rule does expressly
create an exception. State ex rel. Beacon Journal Publishing Co. v. Waters, 67 Ohio
St.3d 321, 324, 617 N.E.2d 1110 (1993). I conclude that the City has not proven that
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this stipulated protective order constitutes legal authority to withhold the requested
record under any recognized exception to R.C. 149.43(B). See generally Heisig v.
MetroHealth System, Ct. of Cl. No. 2016-00806-PQ, 2018-Ohio-4925.
{¶28} I find that the City fails to satisfy its burden to prove that a protective order
can serve as an exception to the Ohio Public Records Act. I further find that the City
fails to prove that the requested records fall squarely within the terms of this protective
order.
Conclusion
{¶29} Upon consideration of the pleadings and attachments, I recommend that
the court order respondent to provide requester with a copy of the EMS/Fire CAD event
summary records, as submitted under seal.
{¶30} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state with
particularity all grounds for the objection. A party shall not assign as error on appeal the
court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).

JEFFERY W. CLARK
Special Master

Filed December 14, 2018
Sent to S.C. Reporter 1/11/19