Cincinnati fights to seal records on lead poisoning

With all the financial pressures facing Ohio cities, it would seem that every city would be looking for ways to avoid taking on unnecessary expenses.
But not, apparently, Cincinnati, where the city health department has chosen to take a case to the Ohio Supreme Court rather than cooperate with a newspaper trying to do a story on the hazards of lead poisoning to the city's children.
The Cincinnati Enquirer is trying to assemble a report on homes, many of them rented, where lead paint has harmed children. Health department files contain the information the newspaper is seeking.
Under Ohio public records law, the information should clearly be made available to the paper. But history has shown that many Ohio government officials find the state's public record law an irritation and will look for any pretext that allows them to keep secret that which should be public.
The catch
In this case, the city is trying to subvert Ohio's public records law by saying the state law is superseded by federal law.
The 2-year-old federal medical privacy rule prohibits health insurers, medical care providers and entities that process medical information from releasing any information that identifies the patient. But the federal law allows the release of information by a public agency if a state records law mandates it.
The Enquirer is seeking copies of 343 violation notices issued to landlords and other owners of properties where tests showed high lead levels in a child's blood. Even very low levels of lead can impair learning and damage health.
Under Ohio law, such violation notices are clearly public record. But the health department is citing an exception in Ohio public records law for records that are shielded by federal law.
That presents a kind of chicken and egg situation. Federal law -- in an obvious recognition of a state's right to govern itself -- says a state's open records law trumps the federal statute. But Ohio law recognizes the possible validity of a federal shield.
That might seem to be the kind of stalemate that would make Cincinnati's health department appear prudent in its refusal to release the citation records. Except for two things.
One: The Ohio Supreme Court has ruled that the state's public records law is to be liberally construed in favor of openness. For nearly 30 years, Ohio attorneys general have told their clients that. When there's a tie, the record is open, not closed.
Two: The records being sought do not identify a single patient. The records identify the properties and the landlords, not the tenants or their children. The health department is saying that it would be possible for the newspaper to use that information to track down individuals, and that's true. But if that act were in any way illegal, the onus would fall on the newspaper, not the city. And remember, when in doubt about whether a record should be opened or closed, see Rule One.
Picking a fight
It seems clear that the health department has chosen to fight to keep information from the public when the stronger argument favored openness.
Cincinnati residents should not only be worried about the 343 rental properties in their city where children were the victims of lead poisoning. They should be worried about health administrators who choose to spend money fighting to keep public records private. Surely there are better ways for the department to expend limited public-health dollars.
Let's hope the Ohio Supreme Court addresses the issue promptly and sends a clear message that public officials will be held to a standard that requires a liberal reading of the state's open records law.