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Summary
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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, which
gives a person who has made a request for access to a record under
subsection 24(1) a right to appeal any decision of a head under the
Act to the Commissioner.
The facts of this case are as follows:
1. On January 11, 1988, the Ministry of Health (the
"institution") received an access request from the appellant
for:
(a) "the names and locations of doctors who have extra-billed
after Bill 94" [Health Care Accessibility Act] came into
force;
(b) "any reports reviewing such extra-billing or reporting on
complaints received";
(c) the "medical areas" or "OHIP fee areas that doctors have
been practicing extra-billing";
(d) "the techniques used to claim for extra-billing".
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2. The institution determined that no reports existed which
reviewed extra-billing or reported on complaints received.
3. By letter dated February 10, 1988, the institution provided
access to the following records relating to the appellant's
request:
(a) Explanatory note to Inquiry Report;
(b) Inquiries - Alpha Physician List (January 13, 1988);
(c) Alphabetic Physician Listing - Key to Code;
(d) Statistical information relating to additional charges
by:
(i) numbers of physicians by specialty;
(ii) option status;
(iii) type of additional charge;
(e) Reimbursement for unauthorized payments/approved
declarations by dollar range.
4. The physicians' names, OHIP registration numbers and the dates
on which they opted in or out of OHIP were severed from the
records released to the appellant.
5. On February 22, 1988, the Office of the Information and
Privacy Commissioner received a letter from the requester
appealing the decision of the institution to sever information
from the records which he received.
6. By letters dated February 23, 1988, receipt of the requester's
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appeal was acknowledged and notification given to the
institution that an appeal had been received.
7. Between February 23, 1988 and May 13, 1988, efforts were made
by an Appeals Officer and the parties to settle the appeal.
However, both parties sought resolution of the issues by way
of an inquiry.
8. By letter dated May 13, 1988, I sent a notice to the appellant
and to the institution stating that I was conducting an
inquiry into the appeal. I advised that the institution had
raised the application of section 67 of the Act as a
preliminary issue and invited the parties to make
representations pertaining to this issue. Further, I advised
that after deciding on the application of section 67, I would,
if necessary, issue notices to affected parties and invite
representations on the outstanding issues. An Appeals
Officer's Report was enclosed with the Notice of Inquiry.
9. Written submissions were received from the appellant and the
institution on the following issues:
A. Whether the legislative provisions relied on by the
institution are "confidentiality provisions" barring the
application of the Act?
B. If the answer to Issue A is in the affirmative, whether the
severances in question fall within the scope of the
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confidentiality provisions relied on?
ISSUE A: Whether the legislative provisions relied on by the
institution are "confidentiality provisions" barring the
application of the Act?
At the outset, I think it important to outline some general
observations before considering the specifics of this appeal.
As Information and Privacy Commissioner, I am charged with
responsibility for ensuring that the rights and obligations of
citizens and government officials as they relate to the Act are
respected and complied with. Where, as in this case, an
institution purports to remove itself from the ambit of the Act
through the use of a "confidentiality provision" in another act, it
is my responsibility to scrutinize the provision of that other act
to ensure that both the subject matter and the person
who would be releasing the requested information under that act
(i.e. the head of the institution) are covered by the
"confidentiality provision" relied on.
Section 67 of the Freedom of Information and Protection of Privacy
Act, 1987 reads as follows:
67.-(1) The Standing Committee on the Legislative
Assembly shall undertake a comprehensive review of all
confidentiality provisions contained in Acts in existence
on the day this Act comes into force and shall make
recommendations to the Legislative Assembly regarding,
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(a) the repeal of unnecessary or inconsistent
provisions; and
(b) the amendment of provisions that are inconsistent
with this Act.
(2) This Act prevails over a confidentiality provision
in any other Act unless the other Act specifically
provides otherwise.
(3) Subsection (2) shall not have effect until two years
after this section comes into force.
Section 67 does not contain an exemption to the Act's disclosure
obligations. Rather, subsection 67(2) provides that the Act
overrides "confidentiality provisions" in other legislation, unless
the other legislation specifically provides otherwise. However,
because subsection 67(3) delays the application of subsection 67(2)
until January 1, 1990, a head may be bound not to disclose
information pursuant to a "confidentiality provision" contained in
another piece of legislation until that date.
In this appeal, the institution has relied on section 44 of the
Health Insurance Act, R.S.O. 1980, c.197 and section 7 of the
Health Care Accessibility Act, S.O. 1986, c.20 as "confidentiality
provisions" which forbid the disclosure of the information
requested by the appellant. Those provisions read as follows:
Health Insurance Act:
44.-(1) Each member of the Medical Review Committee,
every practitioner review committee, the Medical
Eligibility Committee and the Appeal Board and each
employee thereof, the General Manager and each person
engaged in the administration of this Act and the
regulations shall preserve secrecy with respect to all
matters that come to his knowledge in the course of his
employment or duties pertaining to insured persons and
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any insured services rendered and the payments made
therefor, and shall not communicate any such matters to
any other person except as otherwise provided in this
Act.
(2) A person referred to in subsection (1) may furnish
information pertaining to the date or dates on which
insured services were provided and for whom, the name and
address of the hospital and health facility or person who
provided the services, the amounts paid or payable by the
Plan for such services and the hospital, health facility
or person to whom the money was paid or is payable, but
such information shall be furnished only,
(a) in connection with the administration of this Act,
the Health Disciplines Act, the Public Hospitals
Act, the Private Hospitals Act or the Ambulance Act
or the Hospital Insurance and Diagnostic Services
Act (Canada), the Medical Care Act (Canada) or the
Criminal Code (Canada), or regulations made
thereunder;
(b) in proceedings under this Act or the regulations;
(c) to the person who provided the service, his
solicitor or personal representative, the executor,
administrator or committee of his estate, his
trustee in bankruptcy or other legal
representatives;
(d) to the person who received the services, his
solicitor, personal representative or guardian, the
committee or guardian of his estate or other legal
representative of that person; or
(e) pursuant to a subpoena by a court of competent
jurisdiction.
(3) The information referred to in subsection (1) may be
published by the Ministry of Health in statistical form
if the individual names and identities of persons who
received insured services are not thereby revealed.
(4) The General Manager may communicate information of
the kind referred to in subsection (2) and any other
information pertaining to the nature of the insured
services provided and any diagnosis given by the person
who provided the services to the statutory body governing
the profession or to a professional association of which
he is a member.
Health Care Accessibility Act:
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7. Despite subsection 44(1) of the Health Insurance
Act, the General Manager, the Minister and one other
person engaged in the administration of this Act who is
designated in writing by the Minister may furnish to,
(a) a member of the Board;
(b) the person to whom insured services were rendered
or where a person other than the person to whom the
insured services were rendered was charged for
those services, the person who was so charged; and
(c) any other person, with the consent of the person to
whom the services were rendered,
information pertaining to the nature of the insured
services, the date or dates on which the insured services
were provided and for whom, the name and address of the
person who provided the services, the amounts paid or
payable by the Plan for such services and the person to
whom the money was paid or is payable, for the purpose of
enforcing this Act.
In my opinion, these two provisions qualify as "confidentiality
provisions" as the term is used in section 67 of the Act.
Although I do not purport to offer a definitive outline of all
types of provisions contemplated by section 67, it is clear in this
case that section 44 of the Health Insurance Act employs mandatory
language to "preserve secrecy" with respect to certain matters,
while section 7 of the Health Care Accessibility Act operates as a
limited and specific exception to that provision. Accordingly, I
am satisfied that these provisions do operate to forbid the head to
disclose "all matters that come to his attention in the course of
his employment or duties" with certain specified exceptions for
particular types of information. Therefore, my response to Issue A
is in the affirmative.
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ISSUE B: If the answer to Issue A is in the affirmative, whether
the severances in question fall within the scope of the
purported "confidentiality provisions"?
Subsection 44(2) of the Health Insurance Act states that the name
and address of the "person who provided the services" may be
disclosed in certain identified circumstances. Section 7 of the
Health Care Accessibility Act also provides an exception allowing
the release of, among other types of information, the name and
address of "the person who provided the service" in certain
circumstances. Both subsection 44(2) and section 7 are exceptions
to the general application of subsection 44(1) which stipulates
that "all matters" coming to the attention of certain individuals
in certain circumstances shall not be communicated.
As a matter of statutory interpretation a specified exception to a
provision of general application is necessarily subsumed by that
provision of general application. The names of doctors who
provided health care services must be considered information
included in the phrase "all matters" and accordingly, fall under
the general prohibition against disclosure contained in subsection
44(1) of the Health Insurance Act.
Are the OHIP billing numbers and dates when doctors opted in or out
of the plan properly defined as coming within "all matters...
pertaining to... insured services rendered and the payments made
therefore"? In my view, they are, and therefore, my response to
Issue B is also in the affirmative. (I might note that the
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appellant did not request these latter two particular types of
information.)
Having answered both of the issues in the affirmative, this appeal
has been decided in favour of the institution's position of
non-disclosure. However, I would like to take this opportunity to
respond to certain statements contained in the institution's
submissions respecting the scope of my authority to review
"confidentiality provisions" and to view records allegedly covered
by such provisions.
It has been suggested by the institution that "where section 67 of
the FOI/PPA is invoked, the Commissioner's scope of review of the
Ministry's decision is limited to an inquiry as to what
confidentiality provision should be relied on and the basis for the
Ministry's decision." The institution also submitted that "once a
determination is made that the information requested falls within
the scope of confidentiality of [a statutory provision], that
information cannot be disclosed - neither to the Requestor nor to
the Commissioner."
I do not accept this position. While the head of an institution
must determine at first instance whether a particular statutory
provision is a "confidentiality provision" precluding access to the
requester, I, too, must be assured of the relevance and application
of the provision upon receipt of an appeal. I regard this duty as
fundamental to the effective operation of
the Freedom of Information and Protection of Privacy Act, 1987 and
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the principles of providing a right of access to information and
protecting the privacy of individuals.
Furthermore, I do not accept that a "confidentiality provision"
applies to preclude the application of the Act without also
ensuring that the provision in question relates to the specific
records sought by the requester. In many cases I will not be able
to formulate such a conclusion without first viewing the record and
determining whether it contains the kind of information covered by
the "confidentiality provision". Mere reliance on the assertions
of the institution, without the right to inspect the record, cannot
possibly inspire confidence on the part of the public that the
principles enshrined in the Act have been protected. In my
opinion, this approach is supported by subsection 52(4) of the Act
which reads as follows:
52 (4) In an inquiry, the Commissioner may require to
be produced to the Commissioner and may examine any
record that is in the custody or under the control of an
institution, despite Parts II and III of this Act or any
other Act or privilege, and may enter and inspect any
premises occupied by an institution for the purpose of
the investigation. (emphasis added)
Accordingly, it is my intention to fully review the application and
scope of any legislative "confidentiality provisions" which are
invoked by institutions in denying access to records requested by
an appellant. Furthermore, in the course of so
doing, I will determine on a case by case basis the extent to which
I must examine those records to ensure that they are covered by the
provisions relied upon.
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