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Document
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P-867
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File #
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P-9300388
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Institution/HIC
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(Rehearing) Ministry of Health
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Summary
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BACKGROUND: On November 30, 1993, I issued Order P-590. This order disposed of the issues arising in an appeal of a decision of the Ministry of Health (the Ministry) made under the Freedom of Information and Protection of Privacy Act (the Act ). In this decision, the Ministry denied access to the version codes associated with the health numbers of three patients of the requester physicians. A version code is a one or two upper case alpha character located in the lower right hand corner of a health card. The code is assigned to a health number whenever a replacement card is issued. Replacement cards are issued when a registered person turns 65, requests a new card to reflect a name change or correction, or reports that his or her original card has been lost, stolen or damaged. There is no connection between the assignment of a particular version code and the reason for its assignment - version codes are assigned on a completely random computer-generated basis. Essentially, the concept of the version code is simply a method to make any replacement card different from the original. In Order P-590, I concluded that the version codes did not constitute the personal information of the patients as defined in section 2(1) of the Act . Accordingly, I found that their disclosure could not result in an unjustified invasion of the personal privacy of these individuals pursuant to section 21(1). The Ministry had also claimed that access should not be provided to the version codes as to do so would result in its paying fraudulent claims. In this regard, it relied on the exemptions in sections 18(1)(c) and (d) of the Act . I found that the Ministry had not provided me with any evidence to establish a clear and direct linkage between the disclosure of the requested version codes and the harm described in these sections. Accordingly, I ordered the Ministry to disclose the patient version codes to the appellant physicians. The Ministry applied to the Divisional Court for judicial review of my decision. On June 24, 1994, the Divisional Court issued its decision. The Court quashed Order P-590 and stated: The matter is remitted back to [the Inquiry Officer] to reconsider in regard to section 18 at the level of these two doctors and the circumstances peculiar to their requests and the ministry's concerns in response to these precise requests and to now consider the application if at all, of s. 21 of the Act. Prior to the rehearing, counsel for the appellants indicated that one of his clients was no longer pursuing this matter. Thus, counsel remained on record as representing one of the physicians as well as the Ontario Medical Association (the OMA) which had participated in the original appeal. Counsel for both the appellant and the Ministry agreed that they would exchange their written representations. They also agreed that they wished to make oral submissions and did not object to doing so in the presence of other counsel. Accordingly, I exercised my discretion under section 52(13) to allow the parties to make representations in the presence of each other. I heard oral submissions from counsel on October 6, 1994. At the conclusion of those submissions, counsel for the appellant requested that the Ministry counsel provide him with some further factual information, which occurred on October 17, 1994. Upon receipt of this material, counsel for the appellant advised me that, in his opinion, there was no need for a further rehearing in this matter. This response was copied to counsel for the Ministry who has not contacted me further. Accordingly, I am satisfied that I have been provided with all relevant and necessary materials in order to make my decision in this matter. DISCUSSION : PRELIMINARY ISSUE: In her written submissions, counsel for the Ministry indicated that the appellant physician already has the information he requested, i.e. the version codes of his two patients. She, therefore, submitted that the appeal was moot. Counsel for the appellant acknowledged that his client was in possession of his patients' version codes. It was his position in his written submissions, however, that this fact had: ... no bearing on the fundament [sic], underlying and recurring issue before [me], namely, to establish standards or criteria by which determinations can be made as to whether disclosure of a version code would or would not result in economic harm in any particular circumstance. In her oral submissions, Ministry counsel abandoned her argument that the appeal was moot. Rather, she challenged my jurisdiction to rehear this matter on the basis of two paragraphs of the appellant's written submissions. She points to his position as set out above, as well as to a passage in his submissions which states that the issue before me under section 18, as dictated by the Court is to "... define those circumstances where a physician is entitled to disclosure of the version code because there is no reasonable expectation of economic harm". It is the Ministry's position that what the appellant's counsel is requesting that I do falls outside of the direction of the Divisional Court. In effect, she says that the appellant is asking me to create a new policy scheme for disclosure of version codes, something for which I lack jurisdiction both under the Act and the Divisional Court directions for a rehearing. She maintains that my jurisdiction is limited to making a decision on the requests for the two version codes which have been made under the Act . The position of counsel for the appellant was that the Ministry's arguments went to the scope of my decision rather than my jurisdiction to rehear the matter. He argued that his client is pursuing his right to access information under the Act , and has never abandoned this position. He maintains that the two passages in his written submissions referred to by Ministry counsel go to his position on matters for me to consider when I decide on the basis or criteria for granting or denying access to his client. I do not accept the Ministry's position. Counsel has not identified legal impediments to me assuming jurisdiction in this matter. I agree with the appellant's counsel that the Ministry's concerns are really directed towards the scope of my decision rather than whether I may legally hear this matter in the first place. This order will not, as counsel suggests, be analogous to an "advance ruling" in an income tax case. This
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Legislation
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FIPPA
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21(1)(a)
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21(1)(d)
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21(3)
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21(3)(a)
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Feb 17, 1995
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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