Topic: Health
Type: Submissions

Executive Summary

On April 18, 1991, the former Minister of Health, Evelyn Gigantes, M.P.P. disclosed the name of an individual during the course of Question Period in the Ontario Legislature. The propriety of this disclosure was raised by other members of the Legislative Assembly. Subsequently, the Minister of Health resigned her post as Minister.

The Office of the Information and Privacy Commissioner/Ontario (the “IPC”) decided to investigate the incident and report on whether the disclosure of the individual’s name was in compliance with the Freedom of Information and Protection of Privacy Act, 1987, (the “Act“).

The report concludes that the disclosure of the name of the individual in the Ontario Legislature by the former Minister was not in compliance with the Act. However, it should be pointed out that the report does not contain any conclusions as to whether this disclosure was wilful, thereby raising the issue of whether an offence under the Act had been committed. This is a matter being dealt with by the Ontario Provincial Police.

The investigation revealed that certain established practices relating to how the former Minister was briefed by her staff in preparation for Question Period were not followed on April 18, 1991.

The former Minister’s assumption that the name of the identified individual was in the public domain was incorrect in the view of the IPC. While the consent of the individual to the release of his personal information to the Canadian Broadcasting Corporation (the “CBC”) may have led to the assumption that the name of the individual was in the public domain, in fact, the name and identity of the individual were kept confidential by the CBC. It is the IPC’s view that irrespective of whether the identified individual’s personal information was released to the CBC by the Ministry of Health under an access request, disclosure of the name of the individual by the former Minister was not in compliance with the Act.

At the same time, it is the view of the IPC that the former Minister was entitled to have access to the identified individual’s personal information in her capacity as a minister of the Crown, responsible for the proper administration of the Ontario Health Insurance Plan. Whether other employees of the Ministry should have had similar access will be one of the matters the IPC will review at a subsequent date.

The report’s specific conclusions are:

  • The information relating to the identified individual in the possession of and/or disclosed by the former Minister was “personal information” as defined in the Act.
  • The “personal information’ was collected by the Ministry in accordance with the provisions of subsections 38(2) and 39(l) of the Act.
  • The Ministry did not give the identified individual notice of the collection as required by subsection 39(2) of the Act.
  • The circumstances under which the personal information was provided to the former Minister were in accordance with the requirements of the Act.
  • The disclosure of the individual’s name by the former Minister was not in accordance with the requirements of the Act.


Introduction

The Privacy Incident

During Oral Question Period on April 18, 1991, the former Minister of Health was asked the following question by a member of the Legislative Assembly:

I have a question to the Minister of Health. On 21 December 1990 the minister is quoted as saying that she is carefully monitoring what is being paid for through OHIP, speaking with respect to drug and alcohol addiction in the United States, “We are checking travel expenses, frills, and we are cutting them off.”

The minister will be aware, of course, of the CBC interview last night with a particular patient who billed OHIP for drug treatment in the United States at six different institutions over a period of two years at the amount of $500,000. This money included such items as pills, group therapy and laundry. The individual says that he went without getting any kind of an okay from OHIP. He also says that he received $1 1,000, payable to him. When he did not fill out the appropriate OHIP claims forms, they sent him a cheque directly for $11,000. What he did with that money was he bought clothes and put a little aside for his return to Toronto. How can this be when the minister said that she was cutting this off on 21 December? [Hansard, April 18, 1991, page 819]

In responding to the question, the former Minister of Health disclosed the name of the individual. According to Hansard, she said:

The gentleman in question, [name of the identified individual], in fact returned to Ontario-

He was notified on 17 December 1990 that OHIP was finished paying for him. He returned to Toronto on 30 or 31 December, according to our information, [Hansard, April 18, 1991, page 820]


Background of the Investigation

The Access Request

In the latter part of 1990, the CBC asked the Ministry of Health (the “institution”) to confirm a story about a particular individual’s claim (the ‘identified individual”) about unsuccessful treatment in hospitals in the United States, and to obtain additional details about funding of out- of-country medical treatment. The CBC wanted this information for the purpose of producing a news report about out-of-country health insurance funding. The CBC’s enquiry was received by one of the institution’s Media Information Officers. The story regarding the identified individual was not confirmed to the CBC by the Media Information Officer at that time.

On January 10, 1991, the Media Information Officer received an undated letter from the identified individual authorizing the institution to release information from his files. This letter was addressed to the Media Information Officer and stated:

I agree to have information in my file released to [named Media Information Officer] and the Canadian Broadcasting Corporation.

In order to inform the former Minister of this contact with the CBC and the identified individual, the Media Information Officer prepared a briefing note which contained the name of the identified individual. On January 11, 1991, the former Minister was provided with this briefing note.

In order to confirm its information regarding out-of-country funding, by letter dated January 23, 199 1, the CBC submitted an access request under the Act for certain information from the files of the identified individual. This access request referred to the individual’s letter of consent to release information, previously provided to the institution’s Media Information Officer. The CBC requested a list of all hospitals in a particular U.S. city where the identified individual had received medical services, and the details of his treatment. These details included – dates, type of care, medical assessments, progress reports, reasons for release, payments by OHIP, and correspondence.

By letter dated February 21, 1991, the institution released information responding to the request to the CBC. On the basis of the consent received from the identified individual, the institution granted the CBC access to a significant portion of the requested information. The information that was provided was extracted from various OHIP data bases and correspondence files.

On April 12, 1991, the CBC informed the institution’s Media Information Officer that the news report involving the identified individual would be broadcast on April 17, 1991. The CBC also informed the Media Information Officer that the individual would not be shown full-face. The Media Information Officer informed certain persons in the institution about the upcoming news report.

The CBC news report was broadcast on April 17, 1991, on “CBC At Six”. The news report did not identify the individual.

On April 18, 199 1, the CBC news report was identified as an issue on which the former Minister should be briefed. This briefing was to assist the former Minister in responding to potential questions that might be raised during Oral Question Period in the Legislative Assembly.

Established Procedures

In accordance with the procedures of the institution in place on April 18, 1991, issues about which the former Minister required briefing were presented in documents entitled “Priority Briefings”. Priority Briefings consisted of four sections: Issue, Background (or “Current Status” if the issue was an existing one), Recommended Ministry Response and Contact. The Background section contained a chronological sequence of the facts behind the issue. Any “sensitive” information contained in the Background section would be noted by a “#” mark in the left margin, thus drawing it to the reader’s attention.

Specific persons throughout the institution were responsible for preparing and approving different sections of the Priority Briefings. Draft versions of the Priority Briefings were distributed to a number of persons including staff in the former Minister’s office. At approximately noon each day, the former Minister’s Special Assistant – Legislative, would give her a House Book which contained, among other documents, the Priority Briefings. The IPC was advised that the final version of Priority Briefings was often not available until shortly before the noon briefing, or later. At the noon briefing, the former Minister was briefed by:

  • Executive Assistant;
  • Special Assistant – Legislative;
  • Communications Advisor;
  • Deputy Minister;
  • Executive Assistant to the Deputy Minister; and
  • Director, Program Coordination and Issues Management Branch.

Practice Followed on April 18, 1991

The following occurred on April 18, 1991. The former Minister’s Special Assistant – Legislative, provided her with an undated Priority Briefing. The identified individual was named in this particular Priority Briefing. Along with other information, this Priority Briefing contained details of the hospitals where treatment was received, the name of one treating physician and personality traits of the identified individual. None of the information contained in this document was marked ‘sensitive” with the “#” notation in the left margin, nor was there anything to indicate to the former Minister that this Priority Briefing was distributed as an initial draft.

Shortly after this initial draft was distributed, a subsequent draft was circulated. The former Minister’s Special Assistant – Legislative stated that since the interoffice memorandum which accompanied the subsequent draft did not indicate that the initial draft had been changed, she assumed that the subsequent draft was the same 8 the initial draft. Copies of the subsequent draft and the final version of the Priority Briefing of April 18, 1991, that were provided to the IPC had the appropriate “#” mark in the left margin.

Our investigation has confirmed that the former Minister took the initial draft version of the Priority Briefing to the Legislative Assembly in her House Book on April 18, 1991. When responding to a question put to her by a member of the Legislative Assembly, the former Minister referred to her House Book containing this Priority Briefing, and disclosed the individual’s name.


Scope of the Investigation

The IPC has conducted an investigation into the circumstances of this disclosure, pursuant to the Act.

We understand that the Ontario Provincial Police are currently investigating the circumstances surrounding the disclosure by the former Minister, in order to determine whether a prosecution should be commenced under section 61 of the Act. Our investigation did not include consideration of a possible breach of section 61 of the Act.

It is important to emphasize that the IPC’s investigation did not focus on the question of whether the disclosure of personal information by the former Minister was wilful. Rather, the IPC’s investigation has focused on whether the disclosure by the former Minister was in accordance with Part III of the Act. Section 42 of Part III does not require a determination of whether the disclosure was wilful or accidental; the mere fact of disclosure may constitute non-compliance with the Act.

Our investigation included a series of interviews, which are listed in Appendix 1, and a review of all relevant documentation relating to this privacy incident.


Issues arising from the Investigation

The following issues were identified as arising from the investigation:

A. Whether the information relating to the identified individual in the possession of and/or disclosed by the former Minister was “personal information” as defined in subsection 2(l) of the Act.

B. If the answer to Issue A is in the affirmative, whether the personal information identified in Issue A was collected by the institution in accordance with the provisions of the Act.

C. Whether the circumstances under which the personal information was provided to the former Minister were in accordance with the requirements of the Act relating to the disclosure and use of personal information.

D. Whether the disclosure of the personal information by the former Minister was in accordance with the provisions of the Act.


Results of the Investigation

Issue A: Whether the information relating to the identified individual in the possession of and/or disclosed by the former Minister was “personal information” as defined in subsection 2(l) of the Act.

The IPC’s investigation revealed that the information relating to the identified individual was given to the former Minister by way of a briefing note on January 11, 1991 and a document entitled “Priority Briefing” on April 18, 1991. These documents included the name of the identified individual. The information contained in them was obtained from the individual’s files maintained by the institution.

It is the IPC’s view that an individual’s name combined with information relating to the medical history of the individual qualifies as ‘personal information’ as defined in subsection 2(l) of the Act. Thus, the information about the identified individual which was given to the former Minister was “personal information” as defined in the Act.

Conclusion: The information relating to the identified individual in the possession of and/or disclosed by the former Minister was ‘personal information ‘ as defined in the Act.


Issue B: If the answer to Issue A is in the affirmative, whether the personal information identified in Issue A was collected by the institution in accordance with the provisions of the Act.A. Authority to collect:A person is prohibited from collecting personal information on behalf of an institution, unless the collection fits within one of three exceptions contained in subsection 38(2) of the Act; the collection must be expressly authorized by statute, used for the purposes of law enforcement, or necessary to the proper administration of a lawfully authorized activity.

It is the IPC’s view that the phrase “expressly authorized by statute” in subsection 38(2) of the Act requires either that specific types of personal information collected be expressly described in the statute, or a general reference to the activity be set out in the statute, together with a specific reference to the personal information to be collected in a regulation made under the statute, i.e., in a form or in the text of the regulation.

In this case, it is the IPC’s view that a significant portion of the personal information contained in the briefing note of January 11, 1991 and the Priority Briefing of April 18, 1991 was collected by the institution pursuant to sections 21, 22 and 35 and subsection 51(l)(n) of the Health Insurance Act, R.S.O. 1980, c. 197, and section 57 of Ontario Regulation 452 under the Health Insurance Act. These provisions expressly authorize the collection of a significant portion of the personal information.

The balance of the personal information provided to the former Minister was collected by the institution, in the IPC’s view, because its collection was necessary to the proper administration of the Ontario Health Insurance Plan, pursuant to subsections 4(2)(a) and (c) of the Health Insurance Act.

During the course of this investigation, we became aware of other types of personal information relating to the identified individual that were contained in the institution’s files. Since this personal information was not provided to the former Minister, it was not the subject of this investigation. However, a follow-up investigation will be conducted by the IPC to ensure that all personal information relating to the identified individual was properly collected by the institution, pursuant to the requirements of subsection 38(2) of the Act.

B. Manner of collection:Subsection 39(l) of the Act restricts the manner in which an institution may collect personal information. This subsection provides that personal information “shall only be collected by an institution directly from the individual to whom the information relates” unless one of the eight circumstances in paragraphs (a) through (h) applies. One such circumstance is where “another manner of collection is authorized by or under a statute”.

In this case, the bulk of the personal information was not collected by the institution directly from the identified individual. It was collected from physicians, practitioners and hospitals in the United States. The balance of the personal information was collected directly from the identified individual.

It is the IPC’s view that the collection of the personal information by the institution from hospitals, physicians and practitioners in the United States was authorized by or under a statute. Specifically, it was authorized under sections 21, 22, 35 and subsection 51(l)(n) of the Health Insurance Act, R. S. O. 1980, c. 197, and section 57 of Ontario Regulation 452 under theHealth Insurance Act.

C. Notice of collection:

Where personal information is collected on behalf of an institution, subsection 39(2) of the Act requires the head of the institution to give notice of the collection to the individual to whom the information relates. The contents of the notice are set out in subsection 39(2). There are two exceptions to this notice requirement: (i) notice may be waived by the “responsible minister” under the Act – The Chair of the Management Board of Cabinet; and (ii) the notice requirement does not apply “where the head may refuse to disclose the personal information under subsection 14(l) or (2) (law enforcement)”.

In this case, the IPC’s investigation revealed that the institution had not complied with the requirements of subsection 39(2). The identified individual was not notified of the collection of the personal information by the institution, nor had notice to the identified individual of the collection been waived by the Chair of the Management Board of Cabinet.

Conclusions.- The personal information identified in Issue A was collected by the institution in accordance with the provisions of subsections 38(2) and 39(l) of the Act.

The institution did not give the identified individual notice of the collection as required by subsection 39(2) of the Act.


Issue C: Whether the circumstances under which the personal information was provided to the former Minister were in accordance with the requirements of the Act relating to the disclosure and use of personal information.

A. Disclosure of the personal information:

Section 42 of the Act sets out certain circumstances under which an institution may disclose personal information.

It is the IPC’s view that section 42 of the Act is not applicable to the disclosure of the personal information by staff of the institution to the former Minister. At the time of disclosure, in January and April 1991, the former Minister was the ‘head’ of the institution, for the purposes of the Act. As “head”, it is our view that the former Minister had the right of access to all the records in the custody or under the control of the institution.

B. Use of the personal information:

It is the IPC’s view that the use of the personal information by the former Minister was in accordance with the requirements of section 41 of the Act.

Section 41 provides three circumstances under which an institution can use personal information, namely: (a) where the person to whom the information relates has identified that information in particular and consented to its use; (b) for the purpose for which it was obtained or compiled or for a consistent purpose; or (c) for a purpose for which the information may be disclosed to the institution under section 42 or under section 32 of the Municipal Freedom of information and Protection of Privacy Act, 1989.

The personal information was obtained by the institution in order to make payments by the Ontario Health Insurance Plan for insured services rendered to the identified individual, including the determination of eligibility and amounts.

The personal information was provided to the former Minister to prepare her for questions which were expected to be raised in the Legislative Assembly and by the media relating to payments made by the Ontario Health Insurance Plan, for medical services rendered by physicians and hospitals in the United States to the identified individual.

It is the view of the IPC that while the former Minister did not use the personal information for the purpose for which it was obtained, she used the information for a consistent purpose. All ministers of the Crown when taking responsibility for the administration of their ministries must, of necessity, have access to all the information that pertains to the programs, policies and other activities of the ministry. If ministers are limited in what information they have access to, their ability to fulfil their ministerial responsibilities will likewise be limited.

As OHIP falls within the Minister of Health’s portfolio, the Minister of Health must necessarily be informed of all issues and matters that touch on the Minister’s responsibilities. The proper administration of the OHIP out-of-country funding policy is compatible with the purpose for which the personal information was collected. The former Minister’s use of the personal information was reasonably compatible with the purpose for which it was collected. Accordingly, the former Minister’s use of the personal information falls within the exception contained in subsection 4 1 (b) of the Act.

Conclusion: The circumstances under which the personal information was provided to the former Minister were in accordance with the requirements of the Act.


Issue D: Whether the disclosure of the personal information by the former Minister was in accordance with the provisions of the Act.

It is the IPC’s view that the disclosure of the name of the identified individual by the former Minister was not in accordance with the requirements of the Act. Section 42 provides a number of exceptions to the prohibition against disclosure, in our view, none of which apply in the circumstances of this case.

In commenting on the allegation of improper disclosure of personal information, the former Minister stated the following:

I am horrified that anybody would think so. I would like to make it clear that the gentleman in question in fact gave permission to the CBC to request under freedom of information all materials relating to his confidential medical records. We complied with his request and gave that information to the CBC. That is how the information becomes a question of public record. [Hansard, April 18, 199 1, pages 820 and 821]

The former Minister’s conclusion that all information relating to the individual was a matter of “public record’, while understandable given the publicity the matter had already received, was based on assumptions which, in the view of the IPC, were incorrect.

The former Minister’s conclusion, which connects previous disclosure with later disclosure, appears to be based on a two-fold assumption. The first assumption is that an authorized disclosure of personal information on one occasion automatically authorizes further disclosure. The second assumption is that, if an authorized recipient of personal information (the CBC) has subsequently disclosed the personal information, there is no longer any necessity for confidentiality.

The IPC investigation revealed that a copy of an undated letter from the identified individual to the named Media Information Officer at the institution accompanied the CBC’s access request. The IPC carefully reviewed this letter which authorized the institution to disclose personal information of the identified individual to the CBC. The letter stated that “(he) agree(d) to have information in (his) file released to [named Media Information Officer] and the Canadian Broadcasting Corporation.”

Concerning the assumption of automatic authorization for further disclosure of personal information, it is the IPC’s view that the authorization in this case was specific and limited to the disclosure of personal information in the identified individual’s file to “[named Media Information Officer] and the Canadian Broadcasting Corporation”. This removes the basis for the assumption of any automatic authorization to further disclose the personal information of the identified individual.

Concerning the assumption relating to the subsequent disclosure of personal information by the CBC, the IPC’s investigation revealed that after the personal information was disclosed by the institution to the CBC, the CBC and the identified individual took certain steps to protect his identity and to protect against disclosure of his name to the public. Given the wording of the letter of authorization sent to the institution by the identified individual, it may have been natural to assume that the name of the individual would be made public by the CBC. It is now known that this in fact did not occur.

Thus, in the view of the IPC, the specifically authorized disclosure of the personal information by the institution to the CBC did not put the information in the public domain.

Further, it is the IPC’s view that the former Minister was not required to disclose the name of the identified individual to the Legislative Assembly in order for her to discharge her assigned Executive Council responsibilities to the Legislative Assembly. Subsection 32(a)(i) of The Standing Orders, Legislative Assembly of Ontario, provides:

A minister may, in his or her discretion, decline to answer any question.

In this case, it is the IPC’s view that the former Minister could have adequately responded to the question posed to her by a member of the Legislative Assembly, relating to the payments made by OHIP for drug treatments in the United States, without disclosing the name of the identified individual.

The disclosure by the former Minister does not fit within any of the exceptions to the prohibition against disclosure contained in section 42 of the Act and therefore, it was not in accordance with the Act.

Conclusion: The disclosure of the individual’s name by the former Minister was not in accordance with the requirements of the Act.


Summary of Conclusions

  • The information relating to the identified individual in the possession of and/or disclosed by the former Minister was ‘personal information’ as defined in the Act.
  • The personal information identified in Issue A was collected by the institution in accordance with the provisions of subsections 38(2) and 39(l) of the Act.
  • The institution did not give the identified individual notice of the collection as required by subsection 39(2) of the Act.
  • The circumstances under which the personal information was provided to the former Minister were in accordance with the requirements of the Act.
  • The disclosure of the individual’s name by the former Minister was not in accordance with the requirements of the Act.


Other Matters

During the course of this investigation we became aware of other personal information management practices followed by the institution that warrant further investigation to ensure compliance with the Act. Among them are the following:

  1. The notification provision required by subsection 39(2).
  2. The proper authority for collection of certain personal information from U.S. hospitals.
  3. The proper use and disclosure of personal information within the institution for the purposes of preparing briefings for the Minister.
  4. The contents of briefing notes for the Minister.

These matters are important in the broader context of ensuring that the institution is complying with the provisions of Part III of the Act. Our Compliance department will be meeting with representatives of the institution to formally define the scope of the second phase of this investigation.


Appendix I

Interviews Conducted by the IPC

  • Former Minister
  • Executive Assistant to the former Minister
  • Special Assistant – Legislative to the former Minister
  • Communications Advisor to the former Minister
  • Director, Program Coordination and Issues Management Branch
  • Director, Communications and Information Branch
  • Briefings and Issues Officer
  • Media, Information Officer
  • Executive Assistant to the Assistant Deputy Minister, Health Insurance and Systems
  • Executive Assistant to the Executive Director of the Health Insurance Division
  • Freedom of Information and Privacy Coordinator
  • Program Advisor from the Freedom of Information and Privacy office
  • Medical Consultant, Toronto District Office
  • Manager of Claims Services, Toronto District Office
  • Supervisor of Out-of-Country Claims, Toronto District Office
  • Out-of-Country Claims Clerk, Toronto District Office
  • Manager of Production Services, Systems Support Branch
  • CBC news producer who was involved with the news report
  • Legal Counsel at the CBC.