COLUMBUS — The Ohio Court of Claims has ordered the Ohio Department of Health to release data about daily hospital staffing levels, medical supplies and bed capacity as the coronavirus pandemic continues.
The court ruled this week in favor of Eye on Ohio, Ohio Center for Investigative Journalism, which sued after it was denied a data request submitted in March. In addition to ordering the records’ release, Eye on Ohio is entitled to recover the $24 court filing fees and other costs, except attorney fees, from the Department of Health.
The department has the right to appeal the ruling to the Ohio Supreme Court. It’s unclear whether it will do so. It would be the discretion of the Supreme Court as whether to hear the case.
In rejecting the records request, the Ohio Department of Health argued the data are security records exempted from disclosure under the state’s public records law. The information tracked through the Ohio Department of Health’s data-gathering software, Surgenet, is for responding to crises, such as bioterrorism or a pandemic, and shouldn’t be released because it could be used in the response to a future terrorism attack, the agency argued.
The court, which reviews public records disputes, disagreed.
“Although the Surgenet system could be used to mitigate or respond to acts of terrorism at some future time, and ODH may be able then to justify the security records exception, its daily hospital bed and resource records were not being so used on the date of this request,” stated an October report by the Court of Claims special master. The special master is a court administrator who reviews cases and makes recommendations for the Court of Claims.
The court ultimately adopted the special master’s report and recommendations.
Eye on Ohio asked for data on each hospital’s capacity and availability of adult and pediatric medical, surgical critical care and airborne isolation beds, as well as the availability of medical supplies such as ventilators, N95 and other masks, face shields, gloves and gowns.
Some of this information is now being released.
Beginning on July 1, the state has made public Ohio Hospital Association daily information on total bed capacity, intensive-care unit bed capacity and ventilator usage.
At the time of Eye on Ohio’s March request, state officials had said supplies were low and they encouraged the state’s residents and businessowners to make sacrifices to “flatten the curve,” and avoid overwhelming hospitals.
On Monday, Ohio hospital leaders from Cleveland, Columbus, Cincinnati and Lima told reporters and the public in a live briefing that hospital staffing levels were a concern in the latest coronavirus wave because their employees were getting COVID-19 from community spread.
They described the supplies of personal protective equipment as less dire because there had been time to build up stock. They said they were more concerned about staffing levels than beds, but said there were plans in place to create more space for beds if the recent exponential increases in cases required so.
Not all hospitals participate in the Ohio Department of Health’s Surgenet system, which is federally funded. Those that do send their information to the Ohio Hospital Association, which transfers the data daily to the system.
Threats from foreign terrorist organizations
The health department received a verbal warning in March from an FBI agent about threats by foreign terrorist organizations to attack the U.S. healthcare infrastructure, it argued.
But the Court of Claims determined that the state’s public records law focuses on records and not computer systems, such as Surgenet. It didn’t believe the department proved that the actual records Eye on Ohio had requested were used to respond to terrorism at the time of the request.
“A general warning that a terrorist organization is directing followers to attack unnamed healthcare infrastructure anywhere within the United States is not the type of specific, credible, current threat required to prove any exception based on risk,” the special master’s report stated. “Nor, even were a specific terrorism threat identified with high confidence, does ODH explain how the snapshot of Surgenet hospital data existing on March 27, 2020 was assembled to prevent, mitigate or respond to that terrorist threat.”
Eye on Ohio requests the information for each day.
ODH also argued that Surgenet’s value depends on participating hospitals honestly reporting data and that the facilities prefer not to discuss the information publicly.
Even if true, “public offices may not withhold records merely because of a policy preference for confidentiality,” the report concluded.