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Document
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P-533
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File #
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9300203, P-9300204, P-9300205 and P-9300207
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Institution/HIC
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Ministry of Health
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Summary
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ORDER BACKGROUND: The Ministry of Health (the Ministry) received four requests under the Freedom of Information and Protection of Privacy Act (the Act ) from an agent who purported to act on behalf of four individuals who are patients in a psychiatric institution. The agent is a patient at the same facility. These requests seek personal information respecting the four patients compiled while these individuals were incarcerated in the psychiatric institution. The requests are very broad in nature, covering periods from eight to 17 years and encompassing records located in many program areas. The four patients each provided the Ministry with a letter of authorization granting the agent the authority to make the request and to proceed with any appeal to the Commissioner's office which might result from the request. For three of the requests (which led to Appeals P-9300203, P-9300204 and P-9300205), the Ministry wrote directly to the patients and indicated that, owing to concerns about patient confidentiality, it was not prepared to honour these authorizations. The Ministry then asked the patients to verify in writing that they wished to proceed with their requests on the basis that any information located would be released to them directly. No responses were received from the patients with the result that the Ministry declined to further process these requests. For the request which lead to Appeal P-9300207, the Ministry processed the request and then issued a decision letter in which it advised the patient that it would not honour the authorization. In the same correspondence, the Ministry offered to provide the responsive records to the patient directly. In a subsequent telephone call, however, the agent advised the Ministry that the patient would only accept delivery of the decision letter through the agent and that any documentation otherwise received would be returned. The agent then appealed the Ministry's decisions not to accept the authorizations which had been signed by the patients. The sole issue for determination in these appeals is whether the Ministry acted reasonably in refusing to accept the authorizations purportedly granted by the patients to have the appellant act as their agent. SUBMISSIONS/CONCLUSIONS: In addressing this issue, it will be necessary for me to consider section 52(14) of the Act and section 3(3) of Regulation 460 made under the Act . Section 52(14) reads as follows: The person who requested access to the record, the head of the institution concerned and any affected party may be represented by counsel or an agent. Section 3(3) of Regulation 460 states that: The head shall verify the identity of a person seeking access to his or her own personal information before giving the person access to it. In the representations provided, the appellant maintains that the authorizations executed by the patients conform in all respects to the requirements of section 52(14) of the Act . The appellant points out that each authorization confers upon the appellant the right to receive the personal information pertaining to the patient. Finally, the appellant notes that the individual authorizations were witnessed by a third party. In its representations, the Ministry states that its decision not to accept the authorizations was based on a number of considerations. First, the Ministry emphasizes that the information being sought in each appeal is extremely sensitive in nature and deals with patient histories compiled over many years. To amplify this point, the Ministry points out that certain types of records pertaining to individuals incarcerated in provincial psychiatric hospitals are governed by the Mental Health Act which precludes one patient from having access to the personal information of other patients. Second, the Ministry has expressed concern about the contents of several clauses contained in each authorization which stipulate that the institution is not to contact the patient directly and that all communications concerning the request and any subsequent appeal are to be directed to the agent only. The Ministry also points out that three of the patients whose personal information is at issue in this appeal never confirmed that they wished to receive the documentation and that the fourth purportedly refused to accept direct delivery of the documents. For all of these reasons, the Ministry submits that there is reason to doubt that the authorizations signed by the patients were provided in a "free and voluntary" fashion. The Ministry has indicated, however, that it would be prepared to process the three remaining requests and to disclose the information to the patients directly. The Ministry points out, in this respect, that the individual patient would then have the option to pass the information to another patient should the individual wish to do so. It will now be necessary for me to more closely examine the contents of the authorizations and the circumstances under which they were executed. Each authorization contains similar language about the extent of the authority which the patient grants to the agent. The authorization specifically instructs the Ministry to "disclose personal information of mine to my agent(s)" and adds that "this authorization is for the purposes of processing this request and any subsequent IPC/O appeal resulting from this request." The authorizations also include the following clauses: I also wish to stipulate that all verbal communication and written correspondence (including any records being disclosed), associated with this request be addressed specifically, explicitly and exclusively as follows:- [name and address of agent provided] I will not accept nor respond to any communication or correspondence relating to this request which are directed towards me contrary to my wishes. In order to decide these appeals, I must balance the right of an individual to be represented by an agent under section 52(14) of the Act against an institution's obligation under section 3(3) of Regulation 460 to verify the identity of an individual seeking access to his or her personal information and, by implication, whether or not an agent, purportedly acting on behalf of an individual, is properly authorized to obtain such information. These issues have been commented upon in two previous orders issued by the Commissioner's off
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Legislation
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Subject Index
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Signed by
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Irwin Glasberg
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Published
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Sep 10, 1993
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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