Ohio has spent more than $45K to fight WCPO's request for nursing home deaths to be made public

Are COVID deaths public record in Ohio?
Donald Gazaway died from COVID at age 60 in 2020, three weeks after being admitted to nursing home for stroke.
Posted at 11:38 AM, Nov 17, 2021
and last updated 2021-11-18 11:24:42-05

COLUMBUS — More than 8,000 people have died of COVID-19 in long-term care facilities in Ohio since the pandemic began.

But where they died is still a secret in the state of Ohio.

After fighting the Ohio Department of Health for more than a year in court, WCPO and several others are now taking their cases to the 10th District Court of Appeals in Columbus.

“They’re just asking for the reliable, true statistics of the pandemic and the deaths that it has caused, or hasn’t caused. It’s that simple,” said Cincinnati attorney Matt Miller-Novak.

Attorney Matt Miller-Novak
Attorney Matt Miller-Novak

Miller-Novak represents a Columbus woman, Rosanna Miller, whose case is among the five appeals being heard in a Columbus courtroom this month, including WCPO’s, all involving complaints against the Ohio Department of Health for not releasing information about COVID deaths.

Miller-Novak argues his case to the appeals court on Thursday.

“With all the misinformation out there nowadays, isn’t that what we want people to do instead of making up numbers or getting it from really unreliable places? Just to ask the state how many people have died of COVID in the state of Ohio last year,” Miller-Novak said.

WCPO and Miller filed separate complaints against the Ohio Department of Health in 2020 for that public information and won in the Court of Common Claims.

Donald Gazaway died in 2020 of COVID while at a nursing home recovering from a stroke.
Donald Gazaway died in 2020 of COVID while at a nursing home recovering from a stroke

The health department has appealed its losses to the 10th District Court of Appeals, which is hearing arguments on the issues in front of three-judge panels.

“There’s a number of other cases that are up there, I believe five in total, including yours,” Miller-Novak said. “There are small variances between the different cases.”

Attorneys for Ohio’s health department tried to argue that death information is private under state law. Special Master Jeff Clark disagreed, noting that the information is already available on death certificates, which are public records. He ruled that officials violated the state’s public records law when they refused to release to WCPO the number of COVID-19 deaths at a Cincinnati nursing home. A judge later adopted that ruling.

WCPO attorney Darren Ford
WCPO attorney Darren Ford

“These are the people’s records. They are not ODH’s records. They belong to every citizen in the state of Ohio,” said WCPO attorney Darren Ford, who gave his oral argument before the appeals court on Nov. 10.

The state has spent more than $42,000 in legal fees, as of July, to fight WCPO in court, according to information received from a public records request.

“I don’t want another family to be in the position that we were,” Joy Gazaway said. “I feel that is public information and it will help us to make decisions.”

In an interview last April, Joy Gazaway said that information would have helped her choose a nursing home for her 60-year-old brother, Donald Gazaway, who died in 2020 of COVID. He died three weeks after he arrived at a Cincinnati nursing home to recover from a stroke.

Joy Gazaway lost her brother, Donald Gazaway, to COVID in 2020.
Joy Gazaway lost her brother, Donald Gazaway, to COVID in 2020.

“I wanted to know what the stats were, particularly with mortality, because that would better enable me to make some choices,” Gazaway said. “I need to see something more than the (nursing home) front lobby and the furniture and the fact that you have an aquarium… I need to see what type of care, what level of care, that I can expect at this facility.”

The heath department’s website shows how many nursing home residents and staff members currently have COVID. But it does not say how many have died there from COVID.

Other states such as Michigan, Indiana, Kentucky, Pennsylvania and West Virginia do release that information.

And if Miller-Novak has his way, so soon will Ohio.

“For me it doesn’t make any sense that this information is private when everything my client requested is available on a death certificate, which are public records," Miller-Novak said. "I find it a little bit bizarre."

If Miller-Novak and WCPO win in front of the court of appeals, the case might not end there. The Ohio Department of Health could appeal it to the Ohio Supreme Court. If the state’s highest court takes the case, a final decision would not come until sometime next year.