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Appeals court: Ohio broke public records law by not releasing nursing home COVID deaths

WCPO won core complaint in appeals court
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Posted at 5:50 PM, Jun 03, 2022

CINCINNATI — The Ohio 10th District Court of Appeals sided with WCPO in its core complaint against the Ohio Department of Health this week, ruling that health officials violated public records law when they refused to release the number of COVID-19 deaths at a Cincinnati nursing home.

WCPO and other media outlets have been fighting for nearly two years for more transparency against state health officials, who refuse to say how many residents die of COVID at each nursing home. Other states such as Kentucky, Indiana, Pennsylvania, Michigan and West Virginia openly release this information to the public.

“The records of state agencies and public offices are the people’s records. They don’t belong to the public officials; they are all of ours,” said WCPO’s attorney Darren Ford. “We’re a democracy.”

Attorneys for Ohio’s health department tried to argue that death information is private under state law. But the appeals court disagreed.

WCPO attorney Darren Ford
WCPO attorney Darren Ford

“Consequently, we conclude that WCPO's core request — for the number of deaths at Burlington (House Rehab and Alzheimer's Care Center) in 2020 and the date of those deaths — does not seek protected health information,” Judge William Klatt wrote on behalf of a three-judge panel in a June 2 opinion.

This is the second time state health officials have lost to WCPO. Special Master Jeff Clark sided with WCPO in 2021 in its Court of Claims complaint. The Ohio Health Department appealed that loss to the 10th District Court of Appeals and lost the majority of its claims for the second time.

Based upon this conclusion, we must further conclude that (state law) does not prohibit the release of the core records WCPO sought in its first request. Moreover, (state law) dictates that information in an aggregate form … must be released by ODH,” Klatt wrote.

The appeals court did side with the health department on one front: the agency does not have to release identifiable information about COVID nursing home fatalities such as a person's sex or date of death.

The Ohio Department of Health has spent more than $56,000 in legal fees paid to fight WCPO in court for nine months from November 2020 to August 2021. WCPO has filed a public records request for the total amount of taxpayer-funded legal fees.

Joy Gazaway lost her brother Donald Gazaway to COVID while in a nursing home.
Joy Gazaway lost her brother Donald Gazaway to COVID while in a nursing home.

“The little person would not have had the ability to challenge the Ohio Department of Health or the nursing home community in getting the release of these figures. So kudos to WCPO … this is public information,” said Joy Gazaway, who lost her brother to COVID in April 2020.

Joy Gazaway said information would have helped her choose a nursing home for her 60-year-old brother, Donald Gazaway. He died three weeks after he arrived at a Cincinnati nursing home to recover from a stroke.

“At that time, and that time was not that long ago, all we had to go on was what we could see from the doorstep of the nursing home,” Gazaway said. “It may not help my brother, but I hope it helps another family and it might even help me in the future.”

Donald Gazaway died from COVID at age 60 in 2020, three weeks after being admitted to nursing home for stroke.
Donald Gazaway died from COVID at age 60 in 2020, three weeks after being admitted to nursing home for stroke.

While the Ohio Department of Health does release the number of COVID-19 cases at each long-term care facility on its website, it only lists the number of COVID-19 deaths at the county level.

More than 9,100 residents of long-term care facilities in Ohio have died since the start of the pandemic. But health officials have refused to say where they died.

 “Early on in the pandemic, understanding the death rates and the number of people who were dying at nursing homes. … that information was extremely important to people who were making decisions about loved ones and about risk back in 2020,” Ford said.

But statistical health data is important for many reasons, Ford said.

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Donald Gazaway's memorial service at Walnut Hills Cemetery on Sep. 3.

“It extends beyond just pandemics and nursing homes, this is just aggregate health information, health data,” Ford said. “If there are other health issues that come up in the state of Ohio where people might like to have aggregate data … it allows the public to get that information.”

WCPO filed the complaint in the Ohio Court of Common Claimsafter the health department denied a June 2020 public records request for the number of COVID-19 deaths at the Burlington House nursing home, as well as the number of COVID-19 deaths at all nursing homes in Hamilton, Clermont, Butler and Warren counties.

When WCPO first made its public records requests, 70% of all Ohio COVID-19 deaths were patients of long-term care facilities. State officials were scrambling to control the pandemic by conducting mass testing of nursing home residents and staff.

The Ohio Department of Health may ask to appeal the case to the Ohio Supreme Court.

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