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The Ohio Supreme Court on Tuesday rejected a public records request seeking data on COVID-19 deaths and vaccinations. Katherine Huwig of Freedom Counsel, a public critic of Gov. Mike DeWine’s COVID-19 policies, requested the data.
In a 4-3 decision, the court ruled that although the data Huwig requested is public record, the request would compel the Ohio Department of Health to search its database, export the data into a new Excel spreadsheet, and redact some of it, which the court said is “more than the law commands.”
The court stated that under Ohio public records law, government public records custodians are not required to comply with requests that necessitate compiling information into a new document.
In its decision, the court wrote:
“The law does not require the department to create new records to respond to a public-records request. Writing a new query to extract certain information from existing digital records is legally no different from asking a custodian to comb through an existing record and handwrite certain information in a new document. Yet this is what Huwig expects the department to do to respond to her public-records request.”
Attorney Thomas Connors, who represented Huwig, told The Defender that his research shows that “most if not all of the states that have addressed this issue have come to the opposite conclusion. So it’s an unusual decision.”
Before the COVID-19 pandemic, the department produced customized datasets upon public request, according to court documents.
Huwig, who runs a Facebook group and podcast focusing on COVID-19 data-related issues, testified twice in 2021 before an Ohio House committee, sharing results of her analysis of the department’s then-public datasets.
Following her testimony, during which she criticized the datasets, the department reduced the amount of data made publicly available online.
‘Why and how people have died in the state of Ohio is critically important’
In 2023, Huwig asked the Ohio Department of Health for information from two state databases: a “death information database” with details about each death in Ohio, and a vaccination database with immunization records.
After obtaining the information, Huwig submitted another public records request for spreadsheets from the databases for more than 100 fields of information over a several-year period.
The department said the records didn’t exist and that it would not create them.
Huwig amended her request, asking for the same information but limiting the time frame to only 2021, with redactions to protect private health information. She also asked for details on how the department organizes its data so she could fine-tune her request.
Health officials refused those requests, saying they were overly broad and would require government workers to create a new record. The department also said workers could not determine how much data would need to be redacted to protect private health information, because “bad actors” may be able to use the internet to identify individuals.
Huwig sued the department for the information.
In an affidavit to the court reported by Cleveland.com, Huwig said she sought data providing key information, such as the secondary cause of death, that wasn’t available in the department’s public statistics. She also accused the DeWine administration of concealing or manipulating data to justify its COVID-19 policies.
“Why and how people have died in the state of Ohio is critically important for those who still are living in the state of Ohio,” she stated.
Lawyers for the state argued that meeting her request would compel health department officials to “undertake considerable effort,” and could open the door to other similarly onerous requests. They also said Huwig could conduct much of her analyses using publicly available data.
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Department should help narrow records request, dissenting judge writes
Four judges joined the ruling in favor of the Ohio Department of Health.
In a dissenting opinion, Chief Justice Sharon Kennedy took issue with the health department’s claim that Huwig’s request was overbroad, arguing that the department must provide her with an opportunity to narrow the request.
She said the health department’s argument against producing the records “is tantamount to a claim that a public office can deny a public-records request if the requested record is too many pages long. However, that is not the law.”
Kennedy also disagreed that the department would not be able to protect private health information. “If accepted, this argument would practically vitiate all public-records requests made to the department,” she wrote.
Connors said the dissenting opinion confirmed that the database files are public record. So the next logical step would be for Huwig to ask for the files in their entirety, rather than asking government employees to identify and export specific fields, he said.
He said access to COVID-19 mortality data and vaccination status — which health departments have — is a key issue in every state across the country.
“Researchers need these files to do the retrospective research necessary to understand the impact of COVID-19 vaccination,” Connors said. “We’re not getting that, and so they are not able to do that research.”
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