Ludlow v. Ohio Dept. of Health

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Ludlow v. Ohio Dept. of Health, Slip Opinion No. 2024-Ohio-1399.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2024-OHIO-1399
LUDLOW, APPELLANT, v. OHIO DEPARTMENT OF HEALTH, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Ludlow v. Ohio Dept. of Health, Slip Opinion No.
2024-Ohio-1399.]
Public Records Act—R.C. 149.43(A)(1)(v) does not require public offices to release
records when release is “prohibited by state or federal law,” and this
exception applies to records that contain protected health information, R.C.
3701.17(B)—A decedent’s name and address, when combined with
information regarding his or her cause of death, falls within definition of
“protected health information,” R.C. 3701.17(A)(2), because the combined
information reveals decedent’s identity and past physical-health status—
Records that contain a decedent’s name and address, when combined with
information regarding his or her cause of death, are exempt from disclosure
under Public Records Act—Court of appeals’ judgment affirmed.
(No. 2022-1391—Submitted October 25, 2023—Decided April 17, 2024.)
APPEAL from the Court of Appeals for Franklin County,
 SUPREME COURT OF OHIO

No. 21AP-369, 2022-Ohio-3399.
__________________
FISCHER, J.
{¶ 1} Ohio’s Public Records Act, R.C. 149.43, does not require public
offices to release records when release is “prohibited by state or federal law.” R.C.
149.43(A)(1)(v). This exception applies to records that contain protected health
information. R.C. 3701.17(B). A decedent’s name and address, when combined
with information regarding his or her cause of death, clearly falls within the
unambiguous definition of “protected health information,” R.C. 3701.17(A)(2),
because the combined information reveals the identity of the decedent and the
decedent’s past physical-health status. The fact that cause-of-death information,
which would include the name and address of the decedent, is obtainable in records
under other statutes when certain conditions are met does not matter, because when
the conditions of those statutes are not met, the information remains protected.
Therefore, we affirm the judgment of the Tenth District Court of Appeals and hold
that records that contain decedents’ names and addresses, when combined with
information regarding their causes of death, are exempt from disclosure under the
Public Records Act.
Facts and Procedural Background
{¶ 2} Appellee, the Ohio Department of Health (“ODH”), uses an electronic
program called the Electronic Death Registration System (“EDRS”) to maintain
death records in Ohio. ODH receives death-event data from funeral-home
directors, coroners, and local health departments, stores that data in the EDRS, and
then uses the EDRS to create and print death certificates.
{¶ 3} In April 2020, appellant, Randy Ludlow, a reporter for the Columbus
Dispatch, filed a public-records request with ODH, requesting a digital spreadsheet
copy of the EDRS database containing information for all death certificates
delivered to ODH from March 1, 2020, through the date of the request. ODH

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initially denied Ludlow’s request, but in October 2020, ODH provided Ludlow with
a digital spreadsheet that included decedents’ sex, age, race, birth date, marital
status, and date, time, place, manner, and cause of death. However, the spreadsheet
did not include the names or addresses of the decedents because ODH claimed that
that information was exempt from disclosure under R.C. 3701.17, which prohibits
the release of “protected health information.” “Protected health information”
includes information that reveals or could be used to reveal the identity of an
individual and describes his or her past, present, or future physical or mental-health
status or condition. R.C. 3701.17(A)(2)(a) and (b).
{¶ 4} In January 2021, Ludlow submitted another request for “a copy of the
[EDRS] database—in digital spreadsheet form—of all death certificates delivered
to the department from March 1[,] 2020 to Jan. 26, 2021 by all local health
departments in the state.” Ludlow sought an updated spreadsheet to reflect death
certificates that ODH had received after ODH had sent him the spreadsheet in
October. He also requested the names and addresses of each decedent, which ODH
again refused to provide.
{¶ 5} Ludlow then filed a public-records-access complaint against ODH in
the Court of Claims under R.C. 2743.75. ODH filed a motion to dismiss the
complaint, arguing that records that contain the names and addresses of decedents,
when combined with information regarding cause of death, are not subject to
release under the Public Records Act, because those records contain protected
health information.
{¶ 6} The Court of Claims denied ODH’s motion to dismiss and ordered
ODH to provide the requested records. The court held that the information was not
exempt from disclosure as “protected health information,” because a different
statute, R.C. 3705.23(A), expressly makes death certificates public information.
R.C. 3705.23(A) requires the director of health to provide a certified copy of a death
certificate when the request is accompanied by a signed application and payment

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of a fee. The Court of Claims reasoned that if R.C. 3701.17 prohibits the release
of information contained in death certificates, then ODH and local registrars violate
the law each time they release an unredacted certified death certificate pursuant to
R.C. 3705.23(A). Therefore, the court ordered ODH to provide Ludlow with the
names and addresses that ODH had withheld.
{¶ 7} ODH appealed to the Tenth District, which reversed, relying on its
earlier decision in Walsh v. Ohio Dept. of Health, 2022-Ohio-272, 183 N.E.3d 1281
(10th Dist.). In Walsh, the relator, Patrick Walsh, sought a writ of mandamus after
ODH refused to provide its “death registry” in response to a public-records request.
Walsh argued that the information in the registry is public because R.C. 3705.23(A)
requires ODH and local registrars to issue certified death certificates when an
applicant submits an application and pays a fee. The trial court dismissed Walsh’s
claim, and the Tenth District affirmed, holding that a decedent’s cause of death is
protected health information because it necessarily indicates that individual’s past
physical-health status or condition. Walsh at ¶ 15. The court of appeals held that
nothing in R.C. 3701.17(B) limits its application to living individuals. Id. at ¶ 14.
The court of appeals further noted that “while it may be true that the information in
certified death certificates [may be] released [under R.C. 3705.23(A)], its initial
release is conditioned on the applicant complying with the statutorily mandated
procedure for obtaining the copy and the copy being duly certified at issuance.” Id.
at ¶ 20. The Tenth District therefore held, “The fact that a decedent’s cause of
death, which qualifies as protected health information under R.C. 3701.17, may be
disclosed to the public by the issuance of a certified copy of a death certificate
pursuant to R.C. 3705.23, does not mean that information is not otherwise
prohibited from release for the purpose of [the Public Records Act].” Id.
{¶ 8} Relying on Walsh, the Tenth District here held that the names and
addresses of the decedents, when coupled with their causes of death, were properly
withheld as protected health information because the combined information would

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reveal the decedents’ past physical-health status or condition and the identity of the
decedents. 2022-Ohio-3399, ¶ 18-21.
{¶ 9} Ludlow appealed, and this court agreed to review his single
proposition of law, which says: “Information contained in an Ohio death certificate,
and specifically cause of death information of a decedent, is not ‘protected health
information’ within the meaning of R.C. 3701.17(A)(2) so as to make such
information exempt from disclosure under state law for purposes of the Ohio Public
Records Act, R.C. 149.43.” See 169 Ohio St.3d 1423, 2023-Ohio-212, 201 N.E.3d
909.
Standard of Review
{¶ 10} Ludlow’s proposition of law raises a pure question of law that
requires statutory interpretation. We review pure questions of law and interpret
statutes de novo. See State v. Ashcraft, 171 Ohio St.3d 747, 2022-Ohio-4611, 220
N.E.3d 749, ¶ 7; Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81
N.E.3d 1242, ¶ 11.
Analysis
{¶ 11} Ohio’s Public Records Act requires public offices within the state of
Ohio to make copies of public records available to any person upon request within
a reasonable time. R.C. 149.43(B)(1). However, the statute also includes many
exceptions to the definition of a public record, including an exception for “[r]ecords
the release of which is prohibited by state or federal law.” R.C. 149.43(A)(1)(v).
ODH argues that protected health information is exempt from disclosure in records
under the Public Records Act because the release of protected health information is
prohibited by state law under another statute, R.C. 3701.17.
{¶ 12} R.C. 3701.17(B) states that protected health information reported to
or obtained by ODH “is confidential and shall not be released without the written
consent of the individual who is the subject of the information.” “Protected health
information” is defined as

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information, in any form, including oral, written, electronic, visual,
pictorial, or physical that describes an individual’s past, present, or
future physical or mental health status or condition, receipt of
treatment or care, or purchase of health products, if either of the
following applies:
(a) The information reveals the identity of the individual
who is the subject of the information.
(b) The information could be used to reveal the identity of
the individual who is the subject of the information, either by using
the information alone or with other information that is available to
predictable recipients of the information.

R.C. 3701.17(A)(2).
{¶ 13} Ludlow argues that this case is about whether cause-of-death
information is protected health information, but ODH included cause-of-death
information in the spreadsheet it provided to Ludlow. ODH withheld only the
names and addresses of the decedents. Therefore, the real issue in this case is
whether the names and addresses of the decedents, when combined with
information regarding their causes of death, are protected health information under
R.C. 3701.17. Based on the plain, unambiguous language of the statute, they are.
{¶ 14} Generally, cause-of-death information will reveal a person’s past
physical-health status or condition because the information reveals what the person
may have been suffering from when he or she died. Therefore, the name and
address of a decedent, when combined with his or her cause of death, is
“information * * * that describes an individual’s past * * * physical or mental health
status or condition” and that “reveals the identity of the individual who is the
subject of the information,” R.C. 3701.17(A)(2)(a). The combined information is

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protected health information that is confidential and not subject to disclosure under
R.C. 3701.17(B) and 149.43(A)(1)(v).
{¶ 15} Furthermore, R.C. 3701.17(C) specifies: “Information that does not
identify an individual is not protected health information and may be released in
summary, statistical, or aggregate form. Information that is in a summary,
statistical, or aggregate form and that does not identify an individual is a public
record under section 149.43 of the Revised Code and, upon request, shall be
released by the director.” R.C. 3701.17(C) clarifies that a spreadsheet is a public
record only if the information in the spreadsheet does not identify any individual
person. This case involves a spreadsheet that ODH compiled in response to
Ludlow’s public-records request. That spreadsheet includes information that is in
a summary, statistical, or aggregate form. If ODH were to include decedents’
names and addresses in that spreadsheet, then under R.C. 3701.17(C), the
spreadsheet would identify individuals and would not be considered a public
record. Therefore, the causes of death, as released by ODH to Ludlow, are public
records, but the names and addresses of the decedents, which would identify those
decedents, are not.
{¶ 16} Ludlow argues that R.C. 3701.17(B) unambiguously limits its
application to information concerning living individuals, because protected health
information may be released only with the written consent of the individual who is
the subject of the information and a deceased individual cannot give his or her
consent. However, we see no reason to limit the definition of “individual” to
“living individual” when the statute does not make that distinction. And despite
the dissenting opinion’s insistence that R.C. 3701.17 applies only to an individual
who “ ‘breathes or has a beating heart,’ ” dissenting opinion, ¶ 38, quoting 1 U.S.C.
8(b), the United States Code’s definition of “individual” has absolutely no
application to this case, nor does that definition say what the dissenting opinion
says that it does. 1 U.S.C. 8(a) defines “individual” to include “every infant

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member of the species homo sapiens who is born alive.” 1 U.S.C. 8(b) then defines
“born alive” as one who “breathes or has a beating heart” at the time of birth. In
no way does that federal statute limit the definition of individual to individuals who
are currently living. Instead, it limits the definition of individual to individuals who
were living at one time, as we do here.
{¶ 17} Furthermore, just because a deceased individual cannot give consent
for ODH to release his or her information does not mean that the statute does not
apply to him or her. In fact, this court has already held that a written-consent
exception to a privacy statute does not mean that the privacy protections expire
upon death. In State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek
Local Schools, 163 Ohio St.3d 314, 2020-Ohio-5149, 170 N.E.3d 748, the issue
was whether a public-school district must release records pertaining to a deceased
adult former student in response to a public-records request. This court held that
R.C. 3319.321(B), a provision of the Ohio Student Privacy Act, prohibits disclosure
of such records without the written consent of the adult former student, with no
exception for when the adult former student is deceased. Cable News Network at
¶ 17-18. This court noted that if the student is deceased, then he is no longer
available to grant consent, but we found that the statute nevertheless applied to
protect his records from disclosure. Id. at ¶ 24. The same holds true in this case.
{¶ 18} The dissenting opinion attempts to distinguish Cable News Network
by arguing that the records at issue in that case were not public records “at the
outset.” Dissenting opinion at ¶ 43. To the contrary, Cable News Network and this
case both involve public-records requests for records that would be considered
public records “at the outset” under R.C. 149.43(A)(1) were it not for that statute’s
clear exception for “[r]ecords the release of which is prohibited by state or federal
law,” R.C. 149.43(A)(1)(v). The application of that exception is the issue in both
cases. And like in Cable News Network, we hold that just because R.C. 3701.17(B)
allows an individual to grant permission for the release of his or her protected health

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information, it does not mean that the protection of that information ceases upon
the individual’s death.
{¶ 19} Additionally, it matters not that the records at issue in this case
were created upon the individuals’ deaths rather than during their lifetimes, because
R.C. 3701.17 applies to both living and deceased individuals and protects past
health information. The dissenting opinion argues that by protecting the
information, ODH would be inserting itself into a “position of denying consent
[under R.C. 3701.17(B)] on behalf of a deceased individual.” Dissenting opinion
at ¶ 44. But R.C. 3701.17(B) states that protected health information must be
withheld unless the individual has provided written consent. Therefore, ODH is
not denying consent on behalf of a deceased individual. Instead, ODH is following
the statutory mandate of withholding protected health information when the
exception of written consent has not been met.
{¶ 20} Ludlow also argues that R.C. 3701.17(B) does not apply to deceased
individuals because the statute protects information that describes an individual’s
past, present, or future physical or mental-health status or condition, but a deceased
individual does not have a present or future physical or mental-health status or
condition. But again, Ludlow’s argument ignores the fact that the statute also
explicitly protects past health information. The statute does not apply only to
individuals to whom the entire statute can be applied; the fact that the entire statute
does not apply to certain individuals does not mean that the statute does not apply
to those individuals at all. For example, newborn babies will not have past health
information, but clearly that does not mean that the statute does not apply to their
health records, which describe their present physical condition.
{¶ 21} Ludlow argues that the death-certificate information is not
confidential because the information is subject to disclosure in records under other
statutes. But the fact that the information is subject to disclosure in records under
other statutes when certain conditions are met does not mean that the information

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is subject to disclosure under the Public Records Act. For example, R.C. 3705.231
requires local registrars to allow individuals to photograph or copy death records,
but it does not require ODH to make all death records across the state available for
public inspection upon demand.
{¶ 22} And R.C. 313.10(A)(1) declares that “detailed descriptions of the
observations written during the progress of an autopsy and the conclusions drawn
from those observations filed in the office of the coroner” are public records. But
far from requiring ODH to make all death records available for public inspection,
that statute states: “The coroner of the county where the death was pronounced shall
be responsible for the release of all public records relating to that death.” This
provision refutes Ludlow’s argument that R.C. 313.10 expresses the General
Assembly’s intent to make death records held by ODH public.
{¶ 23} Finally, Ludlow points to R.C. 3705.23, which allows anyone to
obtain a certified copy of a death certificate by submitting a signed application and
paying a fee. But that statute allows the requester to receive a certified copy of a
death certificate only upon payment of a fee of $21.50 and submission of an
application that includes the decedent’s name, date of birth, place of death, date of
death, father’s full name, and mother’s full name. See R.C. 3705.23(A); Ohio
Adm.Code 3701-5-03; R.C. 3705.24(B); R.C. 3705.242(A)(1); R.C.
3109.14(B)(1); Ohio Adm.Code 3701-5-02(A)(20) and Appendix T. Therefore, a
requester under R.C. 3705.23 will necessarily already have the identifying
information of the person whose death certificate they seek. The availability of
cause-of-death information via that statute does not imply that the public may
obtain bulk cause-of-death information with names and addresses of decedents
through the Public Records Act. In fact, allowing the public to obtain death-
certificate information in that way would greatly expand access to death certificates
beyond what is available under R.C. 3705.23 and would render R.C. 3705.23 nearly
obsolete because few people would submit an application or pay the fee to obtain a

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death certificate if they could instead obtain that information for free by making a
public-records request. The availability of cause-of-death information under other
statutes does not imply that the public may obtain bulk cause-of-death information
with names and addresses of decedents through the Public Records Act.
Conclusion
{¶ 24} The name and address of a decedent, when combined with
information regarding his or her cause of death, are protected health information
under R.C. 3701.17 that are not subject to disclosure under the Public Records Act.
Although that information may be obtainable under other statutes, those statutes
require the requester to satisfy certain requirements before they may receive the
information requested. Those statutes say nothing about requiring ODH to release
identifying cause-of-death information en masse when someone files a public-
records request. Accordingly, we affirm the judgment of the Tenth District Court
of Appeals.
Judgment affirmed.
KENNEDY, C.J., and DEWINE, STEWART, and DETERS, JJ., concur.
BRUNNER, J., dissents, with an opinion joined by DONNELLY, J.
_________________
BRUNNER, J., dissenting.
I. INTRODUCTION
{¶ 25} When a newspaper reporter, appellant, Randy Ludlow, sought a
copy of appellee Ohio Department of Health’s death-certificate database for a
certain period during the years of 2020 and 2021, the department disclosed the
database but did not include the names or addresses of the deceased persons whose
death certificates were filed during that period. The majority opinion upholds this
limited disclosure, viewing the database with the names and addresses as containing
“protected health information” under R.C. 3701.17 and therefore exempt from
disclosure under R.C. 149.43(A)(1)(v) for revealing the identities and past

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physical-health statuses of deceased individuals. I respectfully disagree and
therefore dissent.
II. FACTS AND PROCEDURAL HISTORY
{¶ 26} The statement of facts and procedural history set forth in the majority
opinion need no additional explanation, and I rely on them as stated by the majority.
III. DISCUSSION
A. Public-Records Standards
{¶ 27} The fundamental policy of Ohio’s Public Records Act, R.C. 149.43,
is to promote open government, not to restrict it. In Welsh-Huggins v. Jefferson
Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768,
¶ 27-28, we stated:

If a public office or person responsible for public records
withholds a record on the basis of a statutory exception, the “burden
of production” is on the public office or records custodian to plead
and prove facts clearly establishing the applicability of the
exemption. *** [E]xceptions 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[]” * * * “[and must prove] that the
requested records fall squarely within the exception.” [State ex rel.
Cincinnati Enquirer v. Jones-Kelly, 118 Ohio St.3d 81, 2008-Ohio-
1770, 886 N.E.2d 206, paragraph two of the syllabus.] * * *
* * * [U]nlike a party requesting disclosure, the custodian of
the record has knowledge of the contents of the record. * * *. * * *
[R]equiring the government to have the burden of proof is also
consistent with this court’s strict construction of the exceptions of
R.C. 149.43 and resolution of doubt in favor of disclosure.

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See State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools,
163 Ohio St.3d 314, 2020-Ohio-5149, 170 N.E.3d 748, ¶ 8; State ex rel. The Miami
Student v. Miami Univ., 79 Ohio St.3d 168, 171, 680 N.E.2d 956 (1997); see also
R.C. 149.43(B)(1) through (4) (requiring a response to any public-records request,
requiring an explanation for any denial of a request or redaction of public records,
and forbidding conditioning release of public records on the identity of the
requester or the purpose of the request).
B. The Records Sought Were Public Records
{¶ 28} Ohio’s Public Records Act provides that “[u]pon request by any
person * * *, all public records responsive to the request shall be promptly prepared
and made available.” R.C. 149.43(B)(1). Ohio law defines “public office” to
include “any state agency, public institution, political subdivision, or other
organized body, office, agency, institution, or entity established by the laws of this
state for the exercise of any function of government.” R.C. 149.011(A). It is
undisputed that under this definition, the Ohio Department of Health is a “public
office” for purposes of R.C. 149.43.
{¶ 29} R.C. 149.011(G) defines “records” as including “any document,
device, or item, regardless of physical form or characteristic, including an
electronic record * * *, created or received by or coming under the jurisdiction of
any public office of the state or its political subdivisions, which serves to document
the organization, functions, policies, decisions, procedures, operations, or other
activities of the office.” The Public Records Act specifically defines a “public
record” as a “record[] kept by any public office.” (Emphasis added.) R.C.
149.43(A)(1). Under that definition, the requested death-certificate database is a
public record because it is kept by the department.

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C. The Database Sought Does Not Squarely Fall Within an Exception to
Disclosure
{¶ 30} R.C. 149.43 also provides a list of items that are not considered
public records and cannot be released under the Public Records Act. See R.C.
149.43(A)(1)(a) through (ss). As relevant to this case, R.C. 149.43(A)(1)(v) does
not require public offices to disclose “[r]ecords the release of which is prohibited
by state or federal law.”
{¶ 31} Here, Ludlow requested a copy of the database containing all death
certificates delivered to the Ohio Department of Health from March 1, 2020, to
January 26, 2021, by all local health departments in the state. The parties appear
to agree that the database is a public record, but the parties disagree about what
information from the database is exempt from disclosure. Ludlow’s public-records
request sought the release of the names and addresses of the deceased individuals
in the Ohio Department of Health’s death-certificate database. The Ohio
Department of Health refused to provide the names and addresses on the ground
that releasing that information would violate Ohio’s health privacy law, R.C.
3701.17. The majority now endorses that view. I disagree.
{¶ 32} Under R.C. 3701.17, “protected health information” is defined as

information, in any form, including oral, written, electronic, visual,
pictorial, or physical that describes an individual’s past, present, or
future physical or mental health status or condition, receipt of
treatment or care, or purchase of health products, if either of the
following applies:
(a) The information reveals the identity of the individual
who is the subject of the information.
(b) The information could be used to reveal the identity of
the individual who is the subject of the information, either by using

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the information alone or with other information that is available to
predictable recipients of the information.

R.C. 3701.17(A)(2). R.C. 3701.17(B) provides that “[p]rotected health information
reported to or obtained by the director of health [or] the department of health * * *
is confidential and shall not be released without the written consent of the individual
who is the subject of the information,” subject to certain exceptions not applicable
in this case. However, “[i]nformation that does not identify an individual is not
protected health information and may be released in summary, statistical, or
aggregate form.” R.C. 3701.17(C).
{¶ 33} I would hold that the information in the Ohio Department of Health’s
death-certificate database is not “protected health information,” even when it
identifies deceased individuals. My reasoning is fourfold: (1) a death certificate is
a public record; (2) a death certificate is created only after an individual has ceased
to breathe or have a heartbeat; (3) R.C. 3701.17 does not contain an exception for
death records per se; and (4) even if R.C. 3701.17 could be applied, there would
not be uniform application to the entire database.
1. Death Certificates Are Public Records
{¶ 34} There is no legislative uncertainty that death certificates, even when
they reveal the names and other identifying information of deceased individuals,
are public records that are open to public access. R.C. 3705.231 provides that “[a]
local registrar shall allow an individual to photograph or otherwise copy a birth or
death record.” In short, under R.C. 3705.231, all that is needed to access and copy
a death record that presumably contains information regarding the deceased
individual’s name, address, and cause of death—information that the majority
opinion asserts is protected health information—is to ask and it shall be permitted.
{¶ 35} If an official copy of the death record is requested, R.C.
3705.23(A)(1) provides that “the director of health, the state registrar, or a local

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registrar, on receipt of a signed application and * * * fee * * *, shall issue a certified
copy of a vital record, or of a part of a vital record, in the director’s or registrar’s
custody to any applicant, unless the vital record has ceased to be a public record
pursuant to section 3705.09, 3705.11, 3705.12, 3705.121, 3705.122, 3705.123,
3705.124, or 3705.15 of the Revised Code.” No section of Chapter 3701 of the
Revised Code appears in the list of public-records exceptions set forth in R.C.
3705.23(A). Rather, the listed exceptions pertain to substitute birth records,
foundling records, and adoption records. See R.C. 3705.09(G) (the original birth
record of a child is not a public record after a new birth record is issued following
the paternity of that child being established); R.C. 3705.11 (a foundling report is
not a public record when a foundling child is identified and an original birth record
for that child is found or obtained); R.C. 3705.12 (the original birth record of a child
is not a public record after a new birth record is issued following the adoption of
that child); R.C. 3705.121 (the contents of the adoption file of a child adopted in
another state are not a public record); R.C. 3705.122(B) (the contents of the
adoption file of a child born in a foreign country are not a public record); R.C.
3705.123 (the contents of certain adoption files are not a public record); R.C.
3705.124 (the contents of certain adoption files are not a public record after a new
birth record is issued in relation to an adoption); R.C. 3705.15(D)(1) (the original
birth record of a person is not a public record after a new corrected birth record is
issued for that person).
{¶ 36} It is clear that in accordance with Chapter 3705 of the Revised Code,
the General Assembly has decided that death certificates are public records with
few limitations or impediments to disclosure. None of those limitations expressly
reference or include “protected health information” as defined in R.C. 3701.17.
Using R.C. 3701.17 to create restrictions on the disclosure of death records, as the
majority has done, is legislative in nature.

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Our duty in construing a statute is to determine and give effect to
the intent of the General Assembly as expressed in the language it
enacted. Griffith v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-
1138, 54 N.E.3d 1196, ¶ 18; Fisher v. Hasenjager, 116 Ohio St.3d
53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. * * * Further, as we
explained in Symmes Twp. Bd. of Trustees v. Smyth, “[w]hen the
language of a statute is plain and unambiguous and conveys a clear
and definite meaning, there is no need for this court to apply the
rules of statutory interpretation.” 87 Ohio St.3d 549, 553, 721
N.E.2d 1057 (2000). Rather, “[a]n unambiguous statute is to be
applied, not interpreted.” Sears[ v. Weimer, 143 Ohio St. 312, 55
N.E.2d 413 (1944),] paragraph five of the syllabus.

(First and second sets of brackets sic.) Pelletier v. Campbell, 153 Ohio St.3d 611,
2018-Ohio-2121, 109 N.E.3d 1210, ¶ 14. Applying R.C. 3701.17 as an exception
to disclosure also unnecessarily sets up conflict between various existing sections
of the Revised Code—namely, R.C. 3701.17 with R.C. 3705.23 and 3705.231. We
should not interpret or apply a statute to obfuscate its meaning or application,
especially when its plain meaning suffices. See, e.g., Taylor v. First Resolution
Invest. Corp., 148 Ohio St.3d 627, 2016-Ohio-3444, 72 N.E.3d 573, ¶ 140
(O’Connor, C.J., dissenting) (“The majority * * * meanders through a muddied
analysis that obfuscates the law for debtor and creditor alike so that it can hold that
Delaware’s statute of limitations applies * * * [and] reaches the outcome desired
by both it and the decedent’s estate * * *”).
{¶ 37} Nothing the General Assembly has done to create exceptions to the
general principle that death certificates are public records suggests that the
definition of “protected health information” under R.C. 3701.17 restricts disclosure
of information contained in death certificates. Interpreting R.C. 3701.17 as a

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restriction on the disclosure of information contained in death certificates, as the
majority does, unnecessarily and inaccurately interprets R.C. 3701.17, 3705.23, and
3705.231 beyond their plain meanings. This is not our role as the judiciary, and
changing the meaning of a law causes us to join the ranks of legislative lawmakers,
outside of our judicial powers.
2. Deceased Individuals Are Not “Individuals” Within the Meaning of R.C.
3701.17
{¶ 38} The “person” that the majority and R.C. 3701.17 seek to protect is
the “individual.” The Revised Code does not define “individual,” but it does
include “individual” within the definition of “person” in R.C. 1.59(C). The United
States Code, however, does define “individual.” An individual is defined by federal
law as being “of the species homo sapiens who is born alive at any stage of
development,” 1 U.S.C. 8(a), and as one who “breathes or has a beating heart,” 1
U.S.C. 8(b). While the federal definition of “individual” is only directly applicable
when “determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and agencies of
the United States,” 1 U.S.C. 8(a), it is nevertheless persuasive. And while the
majority focuses on the fact that “1 U.S.C. 8(a) defines ‘individual’ to include
‘every infant member of the species homo sapiens who is born alive,’ ” majority
opinion, ¶ 16, the majority should be focusing on the fact that there exists in law—
federal law—a definition of the word, “individual,” that is instructive. The majority
argues that “[i]n no way does that federal statute limit the definition of individual
to individuals who are currently living” but that the statute “[i]nstead * * * limits
the definition of individual to individuals who were living at one time.” (Emphasis
sic.) Id. But this argument still ignores what an individual is, whether federally
defined or not. This court has also recognized a “natural person” in the context of
“undefined words in the Constitution [and] their common, everyday meaning, often
relying on dictionary definitions,” as including “ ‘[t]he living body of a human

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being,’ ” Centerville v. Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d
1167, ¶ 24, quoting Black’s Law Dictionary 1378 (11th Ed.2019), and a “person”
as including “ ‘an individual human being,’ ” id., quoting Webster’s Third New
International Dictionary 1686 (2002).
{¶ 39} R.C. 3701.17 protects “health information” of an “individual.” As
explained, a deceased person is not an individual, because a deceased person does
not breathe or have a beating heart. See 1 U.S.C. 8(a) and (b). Moreover, a
deceased person is not an individual or a person with a living body. See Knab at
¶ 24.
{¶ 40} R.C. 3701.17(A)(2) concerns “protected health information” and
provides that such information is protected if it identifies or could be used to
identify an individual and “describes an individual’s past, present, or future
physical or mental health status or condition.” R.C. 3701.17(A)(2)(a) and (b). The
statute does not specify that the information remains eternally protected, even after
death has occurred and the individual has ceased to be an individual with health
considerations. The absence of such language in the statute is meaningful because,
in other contexts and circumstances, the General Assembly has taken steps to
protect information of deceased individuals. See, e.g., R.C. 3701.9310(A)
(providing that information and records collected for use and maintained by the
Ohio violent death reporting system are not public records); R.C. 3705.23(A)(5)
(“For the first five years after a decedent’s death, a decedent’s social security
number shall not be included on a certified copy of the decedent’s death certificate
* * *”). The General Assembly could have stated something similar in R.C.
3701.17 had it wanted to.
{¶ 41} An individual is no longer an individual after death, because an
individual must be breathing and have a heartbeat. Further, death certificates,
whether singly or in a database format, are generated after an individual dies.
While living persons are individuals who have “physical or mental health status[es]

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or condition[s],” R.C. 3701.17(A)(2), at the time their death certificates are created,
there are no health considerations at stake to be protected, because the former
individual has ceased to be alive.
3. Applying R.C. 3701.17 to Deceased Persons Renders Portions of the Statute
Inapposite
{¶ 42} Were we to apply R.C. 3701.17 to records created after the death of
an individual, there would be no means to effectuate the provision giving a former
individual a choice over the disclosure of those records. See R.C. 3701.17(B).
Even under Ohio statutes for durable power of attorney for health care, the term
“person” has the same meaning as in R.C. 1.59(C), which refers to “an
individual”—that is, a flesh-and-blood person. See R.C. 1337.11(W). Thus, once
a person is no longer a living individual, there is no basis for making health-care
decisions. In this context, it is clear that R.C. 3701.17(B) does not operate to
prevent disclosure of information contained in the death-certificate database.
Stated another way, if the General Assembly had contemplated applying R.C.
3701.17 to records created after death, it could have—and certainly would have—
specified the ability of the deceased individual’s next-of-kin to consent or refuse to
consent to the release of those records. But it did not. And until the recent group
of 2022 Tenth District cases arose concerning this subject giving rise to this appeal,
see Walsh v. Ohio Dept. of Health, 2022-Ohio-272, 183 N.E.3d 1281 (10th Dist.);
Miller v. Ohio Dept. of Health, 10th Dist. Franklin No. 21AP-267, 2022-Ohio-357;
WCPO-TV v. Ohio Dept. of Health, 2022-Ohio-1864, 189 N.E.3d 1287 (10th Dist.);
Knapp v. Ohio Dept. of Health, 2022-Ohio-3401, 195 N.E.3d 1131 (10th Dist.), no
caselaw operated to apply R.C. 3701.17 to death records. Contrary to the recent
decisions of the Tenth District and to the opinion of the majority, I would conclude
that the legislature did not envision death records—created after death and as a
means to document deaths—to hold exempt “protected health information” under
R.C. 3701.17.

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{¶ 43} The majority opinion relies on this court’s holding in Cable News
Network, 163 Ohio St.3d 314, 2020-Ohio-5149, 170 N.E.3d 748, for its conclusion.
That case involved the application of R.C. 3319.321(B), which addresses records
that are not public records in the first instance. R.C. 3319.321(B) imposes duties
of confidentiality on persons in possession of personally identifiable information
concerning a student of an Ohio public school. Cable News Network at ¶ 26. In
Cable News Network, this court considered whether the records of an adult former
student may be released if the student is deceased and unable to grant consent. Id.
at ¶ 1, 17, 24. We explained:

The records of a person who attended a public school can be
disclosed only with the consent of the student, if that student is 18
years of age or older. If that student is deceased, he is no longer
available to grant consent. But R.C. 3319.321(B) provides no
exception for that circumstance. If the General Assembly intended
for the death of a person to alter the confidentiality of certain
information, it could have expressly enacted such a rule. Indeed, in
other contexts, the General Assembly has done so. See, e.g., R.C.
5119.28(A)(16) (a person’s mental-health records are no longer
considered confidential when the person has been deceased for 50
years). Interpreting R.C. 3319.321(B)’s protections to expire upon
the death of an adult former student would effectively rewrite the
statute under the guise of interpretation.

Cable News Network at ¶ 24. Unlike the student records at issue in Cable News
Network, which were created when the student was a minor, was alive, and held
privacy rights that could be protected or waived, see id. at ¶ 3, citing 20 U.S.C.
1232g and R.C. 3319.321(B), death records are at the outset defined as public

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records, see R.C. 149.43(A)(1) and (B)(1); R.C. 149.011(A) and (G); R.C.
3705.231; R.C. 3705.23. Exemptions to statutorily required disclosure of public
records must be proved by the record keeper with evidence that clearly establish
the applicability of the exemption, Welsh-Huggins, 163 Ohio St.3d 337, 2020-
Ohio-5371, 170 N.E.3d 768, at ¶ 27-28. This case is different from Cable News
Network because a death certificate is created after death, when health care ceases
and when the ability to consent, even through a durable power of attorney for health
care under R.C. 1337.12, ceases. R.C. 1337.12. “Protected health information”
expires for individuals under R.C. 3701.17 when they die, except for specific
statutory exceptions such as the Ohio violent death reporting system under R.C.
3701.9310, which has not been raised in this case.
4. There Is No Evidence That a Death-Certificate Database Would Universally
Reveal Past Health Information
{¶ 44} Finally, assuming arguendo that R.C. 3701.17 could apply to
Ludlow’s public-records request, the statute would not apply universally. A death
certificate that is issued without a coroner having conducted an autopsy or
investigation of the death may not have the same specificity or description of the
cause of death as a death certificate that is issued when a coroner does conduct an
autopsy or an investigation. And while a death certificate might provide
information concerning a former individual’s “past * * * physical or mental health
status or condition,” as set forth in R.C. 3701.17(A)(2), such as information
regarding a diagnosed illness, listed physical causes of death might not reflect the
proximate cause of the individual’s death, such as being struck by lightning or
falling off a roof. Death certificates that merely certify in accordance with R.C.
3705.16(C) that a person’s death occurred under natural circumstances would
contain even less information. How then does one decide whether there is consent
to the release of the protected health information? If someone who is next-of-kin
or a designated person had the authority to deny access, R.C. 3701.17(B) would

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specify that authority, but it does not. The department cannot insert itself into this
position of denying consent on behalf of a deceased individual by proffering an
exemption based on unattainable facts; any doubts about the applicability of an
exemption to disclosure must be resolved in favor of access to the records. Cable
News Network at ¶ 8. That the database may or could reveal past health information
for all or some former individuals, is not sufficient evidence to support an
exemption to the public-records law, which specifically defines death certificates
as public records. A blanket refusal to provide access to an entire existing database
of death certificates should not be sustained.
IV. CONCLUSION
{¶ 45} The law is clear: death-certificate records do not fall within the ambit
of protected health information. Deceased individuals no longer have health
information. Living individuals have the right to the protection of their health
information, but former individuals do not. R.C. Chapter 3705 does not protect
health information for individuals who are no longer living, except for those whose
names appear in the Ohio violent death reporting system. Interpreting R.C. 3701.17
in the manner that the majority does is an unnecessary and unwarranted legislative
interpretation that does not need to happen. In practice, it creates a conflict with
R.C. 3705.23 and R.C. 3705.231, and it is an interpretation that should be avoided.
{¶ 46} I respectfully dissent.
DONNELLY, J., concurs in the foregoing opinion.
_________________
Faruki, P.L.L., John C. Greiner, and Darren W. Ford, for appellant.
Dave Yost, Attorney General, Michael J. Hendershot, Chief Deputy
Solicitor General, Stephen P. Carney, Deputy Solicitor General, and Theresa R.
Dirisamer, Assistant Attorney General, for appellee.
_________________

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