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Document
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P-778
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File #
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P-9400091
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Institution/HIC
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Ministry of Health
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry of Health (the Ministry) received a request for information located in the Ontario Health Insurance Plan (OHIP) computer database. The request was for access to a list of the names of all Ontario physicians together with the corresponding total number of laboratory tests ordered by each physician during the most recent twelve-month period. In its decision letter, which the Ministry described as an interim decision, the Ministry indicated that full access would be granted to the information requested and set out two ways in which the information could be provided. A fee estimate in respect of each option was also given. At this time, the requester appealed the fee estimates provided by the Ministry. The Ministry indicated that Option 1 would require the creation of a special computer program. Due to the demand for computer time, an additional four months, after receipt of the deposit, would be required to develop the program. The record created as a result of Option 1 would set out the physicians' names, the twelve-month period and the total number of laboratory tests ordered by each physician. The appellant has confirmed that the information to be provided by Option 1 is more responsive to the request and that it is no longer pursuing Option 2. Therefore, Option 2 is no longer an issue in this appeal. During mediation, the Ministry issued a subsequent decision letter, indicating that access to the information requested was denied under the following exemption: invasion of privacy - section 21(1) The appellant then appealed this decision to deny access to the information in addition to the fee estimate which, as I have previously indicated, it had previously appealed. A Notice of Inquiry was provided to the Ministry and the appellant. Representations were received from both parties. The information at issue consists of the total number of laboratory tests ordered by each of the physicians named in the report. In its representations, the appellant states that while the Ministry refers to its decision as an "interim decision", it is a final decision. I will address this issue as a preliminary matter. PRELIMINARY MATTER: In its decision letter of January 21, 1994, the Ministry set out the cost estimates for the two options by which it proposed to produce the record. As I have indicated, at that time, the Ministry stated that its "interim decision" was to grant full access to the record. On May 5, 1994, the Ministry amended its decision and issued a supplementary decision letter which stated "... our revised interim decision is to deny access to the information requested under subsection 21(1) ...". Where an institution denies access to a record, in whole or in part, pursuant to section 26 of the Act , it is required to issue a notice of refusal to the requester setting out the elements enumerated in section 29(1)(b) of the Act . In this second decision letter, the Ministry indicated the specific provision of the Act under which access was refused, the reason the provision applied to the record and the name and position of the person responsible for the decision. It appears that the Ministry properly followed the requirements under section 29(1)(b) of the Act , with the exception of advising the requester (then already the appellant) of the right to appeal the decision to deny access. Order 81 provides guidance on the types of situations in which an institution may issue an interim decision. An interim decision may be issued where the responsive records are voluminous or too expensive to produce in order for the Ministry to review and make a decision on access. In such cases, the decision on access is "based on consultations or a representative sample of the record" (Order 81). In its representations, the Ministry has provided a hand-designed sample of a record produced under Option 1. The "mock" record shows the name of a physician, the relevant twelve-month period and the total number of laboratory tests ordered by that physician. The record in question is capable of being retrieved through the creation of a special computer program. I acknowledge that the number of physicians and the related laboratory tests may be voluminous and that compiling the record necessitates the creation of a computer program. I also accept that the actual preparation of the record may require additional time upon payment of the deposit. However, as demonstrated on the mock sample of the record, the type of information on which an access decision is to be made is not voluminous. There are only three distinct categories of information on the record (name, time period and number of tests) and only one of these categories, the number of tests, is being withheld under section 21(1) of the Act . Therefore, while this category will appear numerous times on the record to be created, the type of information that the Ministry must review, in order to make its access decision, is the same. In my view, this situation is not one which was contemplated by former Commissioner Sidney B. Linden in Order 81. The Ministry's decision dated January 21, 1994 sets out the fee estimates and includes a decision on access. In the letter dated May 5, 1994, the Ministry amended its earlier decision and denied access to the record pursuant to section 21(1) with regard to sections 21(2)(e), (f) and (i) of the Act . While I appreciate why the Ministry may have referred to these as "interim decisions", in my view, neither of these decisions is an interim decision. I find that the Ministry correctly processed the request and that the Ministry's decision dated January 21, 1994, as amended by its supplementary decision of May 5, 1994, is a final decision and appealable to the Commission. I note that the Ministry raised the section 21(1) exemption some four months after its decision letter of January 21, 1994. Previous orders of the Commissioner have established that institutions are permitted to raise new discretionary exemptions only within a limited time-frame (i.e. 35 days after an appeal has been opened). This provides institutions with a window of opportunity to raise new discretionary exemptions but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced. In this case, the exemp
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Legislation
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Subject Index
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Signed by
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Mumtaz Jiwan
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Published
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Oct 13, 1994
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Type
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Order
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