Category: Freedom of Information

IPC notes an inconsistency in its treatment of OHIP billings as personal information

The IPC/Ontario issued an order on December 17th in which it noted an inconsistency in its treatment of OHIP billing information as personal information. It said:

As the parties have noted, a number of IPC orders have considered the issue of whether OHIP billings reveal personal information of doctors.  In these orders, this office has concluded that OHIP billings that can be connected with specific doctors are their personal information.  For example, in Order P-1502, the Commissioner found that payment to a physician for services rendered in connection with the prescription of home oxygen services was a “financial transaction” within the meaning of section 2(1)(b) of the Act, and therefore qualified as personal information.  I followed this above approach in Order PO-3200.

Interestingly, the above approach can be contrasted with the treatment of other professionals whose billing information has been ordered disclosed under the Act.  In Order PO-3207, I found that information about legal fees paid to a lawyer by a hospital was not exempt from disclosure under the personal privacy exemption, as it was not personal information.  In Orders MO-2363 and MO-2927, among others, this office found that the details of fee arrangements between government institutions and professional consultants did not qualify as the personal information of the consultants.

Though making this note, it was unnecessary for the IPC to resolve the inconsistency or depart from its prior decisions to make the order. The information at issue related to payments made to group practice. The IPC held that, in the circumstances, the information did not reveal anything about an individual physician.

Ministry of Health and Long-Term Care (Re), 2014 CanLII 77316 (ON IPC).

FOI matter moot because the stated reasons for a request spent

On December 15, the Alberta Court of Appeal held that an FOI matter was moot, in part, because the stated reasons for a request were spent. It said:

Second, the dispute about whether certain records can remain private is of no further consequence or practical utility. The ATA wanted SBEBA’s records for reasons that are, now, purely academic. There is no longer any need for the ATA “to gain a full understanding of the operation of SBEBA with its member school boards”; there is no longer any risk of the ATA not “following correct procedures related to the SBEBA” or “interfering with or being seen to interfere with the SBEBA”. Further, the collective agreement entered into between the ATA and Buffalo Trail has long since expired, such that there is no longer any need “to act fully on” it. SBEBA was not revived for the most recent collective bargaining process and will not be the bargaining agent for, or otherwise negotiate on behalf of, Buffalo Trail in any future such process or dispute.

The Court also held that the OIPC lacked standing to pursue an appeal because the issue under appeal did not go to its jurisdiction.

This is another example of the very tough go the OIPC has had in the Alberta courts.

Alberta Teachers’ Association v Information and Privacy Commissioner, 2014 ABCA 432 (CanLII).

Alberta QB deals with scope of application of Alberta health privacy statute

On September 12, the Alberta Court of Queen’s bench issued a decision in which it held that the Alberta Health Information Act may apply to information about individuals other than those who receive a health service that is collected when a health service is provided to an individual.

The case involves an FOI request filed by the daughter of two residents of a health facility. The daughter sought records of her personal information in the custody of the facility after it imposed conditions on her visitation privileges. The facility denied access to a number of records on the basis that references in the records to the daughter constituted the health information of her parents. The Court agreed, and said the following:

These hypotheticals suggest that “other information about an individual that is collected when a health service is provided to the individual” includes, at the very least, information about the mental or physical health of others that relates to the physical and mental health of an individual or a health service provided to an individual and is collected when a health service is provided to an individual. It may affect the diagnosis or the health service provided to the patient.

…

Using this standard to determine whether any of the information in the records of Covenant Health about Ms. McHarg is classified as health information under the Health Information Act, the adjudicator must ask two questions. First, is there any information in Covenant Health’s records about Ms. McHarg that relates to or may directly affect the physical and mental health of Ms. McHarg’s parents or a health service provided by Covenant Health to Ms. McHarg’s parents? Second, if so, was this information collected when Covenant Health provided a health service to her parents?

The Court also addressed two issues pertaining to the application of exemptions under the Alberta Freedom of Information and Protection of Privacy Act. It found in favour of the facility on all issues and quashed the OIPC’s disclosure order.

Covenant Health v Alberta (Information and Privacy Commissioner), 2014 ABQB 562 (CanLII).

Review of IPC exclusion decisions now (officially) subject to reasonableness review

A friend just brought a notable FIPPA judicial review from February 24th to my attention. In it, the Divisional Court affirmed an IPC order to disclose the full names of FRO employees in response to a request for personal information.

The IPC held that the employment-related records exclusion in FIPPA did not apply to certain records containing employee names – records of services provided to the requester. The Court reviewed this on the reasonableness standard, finding that pre-Alberta Teachers‘ case law supporting a review on the correctness standard no longer applies. On the application of the exclusion, the Court rejected an argument that the records of service provided were employment-related in the context:

To qualify for the exclusion, the record must be about labour relations or employment-related matters. The dictionary definition of the word “about” requires that the record do more than have some connection to or some relationship with a labour relations matter. “About” means “on the subject of” or “concerning”: see Concise Oxford English Dictionary, 11th ed., 2004, s.v. “about”. This means that to qualify for the exclusion the subject matter of the record must be a labour relations or employment-related matter.

Adopting the Ministry’s broad interpretation of “about” would mean that a routine operational record or portion of a record connected with the core mandate of a government institution could be excluded from the scope of the Act because such a record could potentially be connected to an employment-related concern, is touched upon in a collective agreement, or could become the subject of a grievance. This interpretation would subvert the principle of openness and public accountability that the Act is designed to foster.

This should be read to be consistent with the Divisional Court’s earlier decision that there need only be “some connection” with excluded subject matter for the exclusion to apply: see Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII). Records that have some connection (i.e. a partial connection) to excluded subject matter are arguably still excluded, but the connection must be real, not speculative and not driven by the context in which a request is made.

The Court also affirmed the IPC’s finding that full name information is not exempt under the “unjustified invasion of personal privacy” exemption.

Question. Why not argue that the information at issue – full names or identifying information – is not “personal information” to which the right of access to personal information applies? The right of access to personal information applies to information and not whole records. In the absence of a special context, the identity of employee/service provider names should not constitute the requester/service recipient’s personal information.

Ministry of Community and Social Services v Doe et al (2014), 120 O.R. (3d) 451.

Alberta CA deals with FOI standing issue, settlement privilege and more

The Court of Appeal of Alberta issued a decision on July 16th that dealt with a significant FOI standing issue among other issues relevant to FOI practitioners.

The Court quashed the Alberta OIPC’s appeal of a lower court decision to quash an order by which the OIPC compelled the Minister of the Environment to disclose a remediation agreement it entered into with Imperial Oil. It also, in obiter, affirmed the lower court’s decision.

The Court quashed the appeal based on a finding that the OIPC had no standing. Alberta case law establishes that a statutory tribunal whose own decision has been quashed on judicial review cannot appeal from that order unless its own jurisdiction is in question. The Court applied this to the OIPC despite the OIPC’s arguments about the unique role of an FOI adjudicator.

In addressing whether the remediation agreement was accessible to the public, the Court held that the agreement was subject to settlement privilege and that the OIPC had erred in finding that settlement privilege does not apply to final agreements. The application of settlement privilege to final agreements gives potentially wide protection to agreements between public institutions and outside parties and is now supported by the the Supreme Court of Canada based on its June 2013 decision in Sable Offshore Energy Inc. v Ameron International Corp.

The Court also interpreted a requirement common to third-party harms exemptions in Canadian FOI statutes that demands information “of the third-party” to qualify. It said:

The exception does not necessarily require ownership in the strict sense; the private party supplying the information would not have to prove that it had a patent or copyright on the information. If the private entity took scientific, financial, or commercial information that was in the public realm, and then applied that information to its specific business, property, and affairs, the resulting data would still be “of the third party”. In other words, it is the information as applied to the business of the third party that would be “of the third party”, not the background scientific or economic principles underlining that information.

The Court held that the OIPC erred in finding that expert reports prepared for Imperial Oil and appended to the agreements did not contain information “of Imperial Oil” because the reports “were developed at the request of the Public Body or in consultation with it.”

Imperial Oil Limited v Alberta (Information and Privacy Commissioner), 2014 ABCA 231 (CanLII).

SCC affirms broad public sector decision-making privilege

Yesterday the Supreme Court of Canada held that the “advice and recommendations” exemption in Ontario’s freedom of information legislation exempts both suggested courses of action and evaluative analysis from the right of public access.

The advice and recommendations exemption provides public servants with a zone of privacy in which to make good decisions that are free from the pressures of partisan politics. Justice John Evans of the Federal Court of Appeal has described the purpose the exemption as follows:

It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.

The Supreme Court of Canada held that the IPC/Ontario’s interpretation of the advice and recommendations exemption as shielding only the recording of a “suggested course of action that will ultimately be accepted or rejected by the person being advised” was unreasonable. It said that the IPC’s interpretation gave insufficient meaning to the word “advice,” which has a broader meaning than the word “recommendation.” It also said the IPC’s interpretation unduly limited the protective purpose of the exemption.

The Supreme Court of Canada’s ruling applies equally to government ministries and other Ontario FOI institutions. It means that recordings of decision-supportive “evaluative analysis” made by public servants, employees, consultants and others will generally be exempt from the right of public access. This may include, for example, lists of alternatives with comments about advantages and disadvantages or simply lists of alternatives. It may also include, according to the Court, drafts of the same kind of recordings.

John Doe v Ontario (Finance), 2014 SCC 36 (CanLII).

IPC accepts “unreasonable interference” argument in e-FOI case

On November 27th, the IPC/Ontario held that a request for twelve years of  electronic data on incidents involving houses used for illegal marijuana grow operations and/or clandestine labs was not a request for “records” because the required production process would “unreasonably interfere” with the operations of the Ministry of Community Safety and Correctional Services. As it has done successfully before, MCSCS argued that the security sensitive nature of its data precluded outsourcing. In this case, MCSCS also successfully argued that its data was not structured in a manner that allowed for production without a manual review for responsiveness; at an estimated 10 minutes per record for review, the request would have taken at least 2334 hours to answer.

Ministry of Community Safety and Correctional Services (Re), 2013 CanLII 77834 (ON IPC).

Div Ct affirms decision to give access to government contract

On December 2nd the Divisional Court affirmed an IPC/Ontario decision that granted access to a municipal contract. The decision is an administrative law decision, but the Court does summarize the principles that govern access to government contracts as follows:

  • absent evidence to the contrary, the content of a negotiated contract involving a government institution and a third party is presumed to have been generated in the give and take of negotiations, not “supplied” by the third party under section 10(1) of the Act [and therefore potentially subject to exemption]
  • the inferred disclosure exception arises where information actually supplied does not appear on the face of a contract but may be inferred from its disclosure
  • the immutability exception arises in relation to information actually supplied by a third party which appears within a contract but which is not susceptible to change in the give and take of the negotiation process such as financial statements, underlying fixed costs and product samples or designs

Under these principles government contracts are very accessible, so much so that the IPC has suggested that Ontario access legislation be amended so contract requests give rise to fewer disputes.

On administrative law, the Court applied Newfoundland Nurses and held that the IPC’s “conclusory” reasons were not sufficient grounds for review in light of the record.

Miller Transit Limited v Information and Privacy Commissioner of Ontario, 2013 ONSC 7139 (CanLII).

[Here’s another contract case from November 28th, also written by Justice Himel but too fact specific to warrant a post. Partial access appeal decision affirmed: HKSC Developments LP v Infrastructure Ontario and Information and Privacy Commissioner of Ontario, 2013 ONSC 6776 (CanLII).]

IPC says full balancing applies in mixed personal information cases

On September 27, 2013 the Information and Privacy Commissioner/Ontario issued a significant decision on the exemption from the right of access to personal information in section 38(b) of MFIPPA (and 49(b) of FIPPA by implication) by finding that a disclosure that is presumed to constitute an unjustified invasion of privacy for the purpose of answering a general records access request is not so presumed for the purpose of answering a request for access to one’s own personal information.

Individuals have a right of access to their own personal information that is in the custody or control of Ontario institutions subject to a number of discretionary exemptions, including an exemption that applies if “the disclosure would constitute an unjustified invasion of another individual’s personal privacy.” This exemption often arises in cases in which individuals seek access to personal information about themselves that is contained in complaints and incident reports (which record information from witnesses, complainants and others about more than one person).

The “unjustified invasion” question is informed by the mandatory exemption for unjustified invasion of personal privacy that applies to “general records” access requests. The mandatory exemption includes a provision that deems certain disclosures to be a presumed unjustified invasion. Here is the MFIPPA provision:

14(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;

(d) relates to employment or educational history;

(e) was obtained on a tax return or gathered for the purpose of collecting a tax;

(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;

(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or

(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations.

In Seguin Township, Adjudicator Cropley held that the application of this deeming provision does not end the analysis in a personal information request as it does in a general records request. A head should go on to consider the other relevant factors (including those listed in the Act) to determine if, on the balance, the invasion of privacy to the person other than the requester is “unjustified” in the circumstances. Adjudicator Cropley said that her interpretation consistent “legislature’s intent in creating a separate, discretionary exemption claim that makes a distinction between an individual seeking another individual’s personal information and an individual seeking his own personal information.” It invites both greater access to personal information and greater uncertainty in dealing with access to personal information requests.

Seguin (Township) (Re), 2013 CanLII 64274 (ON IPC).