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).

Information About Landlords not Personal Information

On September 30th the Ontario Superior Court of Justice held that certain information about residential landlords was not their personal information in the circumstances.

The issue arose in an application that challenged a municipal by-law requiring landlords to obtain licenses for residential rental units. The by-law required landlords to submit information in support of a license (including name, telephone number and address information). The by-law also required a copy of an issued license (which included similar information) to be posted. The applicants argued that the by-law conflicted with the Municipal Freedom of Information and Protection of Privacy Act.

The Court held that MFIPPA’s privacy protection part was not engaged because the information at issue was information that identifies an individual in a business capacity rather than personal information. Justice Leitch explained:

In my view, landlords who lease Rental Units are engaged in business whether or not the landlord is an individual leasing a Rental Unit in his own home or a corporate landlord leasing units in a large apartment building. Both landlords are operating a business. As a result, I am satisfied that the Licensing By-law does not conflict with the provisions of the MFIPPA which protects personal information because the information requested comes within the exclusion set out in s. 2(2.1) of MFIPPA. It is contact information that identifies the individual in a business capacity.

It appears this was the same finding reached by the Information and Privacy Commissioner/Ontario in a previously decided privacy investigation report that dealt with the by-law. The IPC intervened and argued that the Court should not re-decide the issue or, alternatively, adopt the IPC’s finding. The Court rejected the IPC’s argument because of the IPC’s limited jurisdiction to hear and decide privacy complaints.

London Property Management Association v. City of London, 2011 ONSC 4710 (CanLII).

Case Report – FCA raises the question of mixed personal information under PIPEDA

On February 1, the Federal Court of Appeal ordered a matter back to the Privacy Commissioner so that she could determine what parts of notes taken by a doctor in the course of providing an independent medical examination were the examination subject’s personal information.

The dispute arose under PIPEDA, and was about access to information in notes taken by a doctor in the course of providing an IME. The most significant part of the decision is the Court’s response to the doctor’s argument that the information in his working notes was not the subject’s personal information. The Court said:

Mr. Rousseau has a right of access to the information he gave the doctor, and to the final opinion of the doctor in the form of the report to the insurer. In accordance with Principle 4.9.1. of Schedule I to the PIPED Act, this enables Mr. Rousseau to correct any mistakes in the information he gave the doctor or which the doctor noted, as well as any mistakes in the doctor’s reasoned final opinion about his medical condition. But the process of getting to that final opinion from the initial personal information of Mr. Rousseau belongs to the doctor.

This Court, in Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration) [in a decision under the Access to Information Act], has recognized that “the same information can be “personal” to more than one individual” (at para. 15). It may well be, in the end, that some information in the notes will be personal to both Mr. Rousseau and Dr. Wyndowe. A balancing exercise similar to that proposed in our ruling in Canada (Information Commissioner) would then need to be performed.

I believe this is the first time that a court has considered the matter of access to “mixed” personal information under PIPEDA. Mixed personal information is personal information about more than one person, and can be difficult to deal with in an access request. It is often created in the course of investigations where a person who is interviewed gives an opinion or recounts facts about another.

The Court did not mention section 9(1) of PIPEDA, which reads, “Despite clause 4.9 of Schedule 1, an organization shall not give an individual access to personal information if doing so would likely reveal personal information about a third party.” It also mentioned the issue of “work product” information earlier in the award, but did not address whether the doctor’s working notes were likely to speak about him in his professional rather than personal capacity and, hence, be work product rather than personal information. Given these limitations, the award speaks more about things to come than lay down any authority on the meaning of personal information.

Other parts of the award are interesting if not notable. For example, I believe it contains the most detailed discussion by a court about the meaning of “in the course of commercial activity,” the key trigger language for the application of the Act.

Wyndowe v. Rousseau, 2008 FCA 89 (CanLII).