|
Summary
|
|
O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 , (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) of the Act a right to appeal any decision of a head to the Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. On February 12, 1988, the Ministry of Health (the "institution") received a request for access to: "Listing by (drug company) manufacturer and product of prices submitted (to the Ministry) for Formulary 24 as B.A.P. (Best Available Prices). Listing of all products whose B.A.P. exceeded the price listed by the Ministry in the Formulary, i.e., those that exceeded 5% guideline artificially established by Ministry." 2. By letter dated February 15, 1988, the institution's Freedom of Information and Privacy Coordinator (the "Co-ordinator") replied to the requester that they would contact him by March 12, 1988, the end of the 30 day period for response allowed by section 26 of the Act , with a decision regarding the request. The requester was advised before that date, verbally, that his access request would be denied. A letter from the institution, dated March 17, 1988, confirmed the fact that access had been "...denied under the authority of Section 17 of the Act. The reason this provision applies to the records requested is because these records contain commercial information supplied to the Ministry in confidence. The disclosure may prejudice the competitive position of the companies and may also result in similar information no longer being supplied to the Ministry." 3. On March 21, 1988, the requester sent a letter to the Information and Privacy Commissioner appealing the decision of the head to refuse to disclose the requested record. 4. Between March 21, and May 26, 1988, efforts were made by an Appeals Officer and the parties to settle the appeal. A sample copy of the record was obtained from the institution and examined by the Appeals Officer. Settlement was not effected as both parties maintained their respective positions. 5. On July 19, 1988, I sent notice to the appellant, the institution and 63 third parties (the drug manufacturers who had submitted a B.A.P. for consideration for inclusion in Formulary 24) stating that I was conducting an inquiry into this matter and requesting that written representations be made to me prior to August 15, 1988. Several extensions of this time limit were granted and, by September 30, 1988, I received written submissions from the appellant, the institution, an association representing pharmaceutical manufacturers, and 44 of the 63 third parties. 6. I have considered all submissions in making this Order. It may be useful at this point to provide some general background information. I have relied, to a large extent, on the written representations received from the institution and counsel for the Pharmaceutical Manufacturers Association of Canada for this outline. The Drug Programs Branch (the "DPB") of the Ministry of Health is responsible for the administration of the Ministry's drug programs, particularly the Ontario Drug Benefit Program (the "ODBP"). The ODBP was introduced in September, 1974. It was designed to provide prescription drug products, free of charge, to needy, elderly, blind and disabled persons living in Ontario. There are two main pieces of provincial legislation relating to the ODBP, the Ontario Drug Benefit Act, 1986 (the "ODBA") and the Prescription Drug Cost Regulation Act, 1986 (the "PDCRA"). Regulations are made, pursuant to the ODBA and PDCRA, at approximately six month intervals. These Regulations result in the compilation of a new edition of the Drug Benefit Formulary/Comparative Drug Index (the "Formulary/CDI") which lists all drug products which have been approved as benefits under the ODBA. The DPB requests pricing information from all drug manufacturers, by letter. Forms are provided by the Ministry, filled out by the manufacturers, and submitted to the branch by a specified date. The Formulary/CDI also lists pharmaceutical products deemed to be interchangeable, and the maximum allowable costs at which pharmacies will be reimbursed by the Ministry for benefits provided to eligible persons. The Ontario Drug Benefit Act, 1986 states that the price for each prescription drug listed in the Formulary/CDI will be an amount that includes the Best Available Price (the "B.A.P.") for a drug, as determined by the Minister of Health, an additional l0 percent of that price, plus a dispensing fee for each prescription. (B.A.P., as defined by subsection 18(4) of the Act means the lowest amount, calculated per gram, milliliter, tablet, capsule or other appropriate unit, for which a listed drug product of that drug in that dosage form and strength can be purchased in Canada for wholesale or retail sale in Ontario less any price reduction granted by the manufacturer or wholesaler or their representatives in the form of rebates, discounts, refunds, free goods or any other benefits of a like nature.) The additional 10 percent recognizes added costs incurred by pharmacists, such as differences in drug distribution and quantities of drugs purchased. A pharmacist who supplies a listed drug product to an eligible person pursuant to a prescription is reimbursed by the Ministry and is prohibited from charging the eligible person any amount in respect of that drug product. Under the Prescription Drug Cost Regulation Act, 1986 the pharmacist, when filling prescriptions for drugs where more than one manufacturer's product is available, must inform the customer if a lower-cost drug is available. For each interchangeable drug, the pharmacist can only charge the B.A.P. of the drug (the price set out in the comparative drug index less the value of any price reduction granted by the manufacturer or wholesale
|