Pharmaceutical and medical device companies doing business with Ontario organizations that accept public funding, including hospitals, may be affected by recent legislative amendments aimed at increasing transparency and accountability of these entities.
The Ontario Broader Public Sector Accountability Act, 2010, which became law on December 8, 2010, introduced amendments to the Ontario Freedom of Information and Protection of Privacy Act (FIPPA) that expand the scope this Act to include hospitals and local health integration networks.1
The amendments to FIPPA do not take effect until January 1, 2012 in order to provide hospitals with time to implement the necessary processes and protocols for managing information and handling access requests. Hospitals in British Columbia, Quebec, Nova Scotia, Alberta, Saskatchewan, Manitoba and Newfoundland are already subject to provincial access-to-information legislation.
The changes to FIPPA will permit any person to request access to records held by an Ontario hospital, including records that may contain information provided by third parties. With respect to third-party information, access can be refused by the hospital if it is determined that (i) the requested records contain a trade secret or scientific, technical, commercial, financial or labour relations information of a third party; (ii) the records were supplied in confidence, implicitly or explicitly, to the hospital; and (iii) the disclosure of the records (a) could reasonably be expected to significantly prejudice or interfere with a competitive position or negotiations, (b) result in similar information not being supplied to the hospital and it is in the public interest that such information be supplied, (c) result in undue loss or gain to any person or entity, or (d) reveal information relating to a labour relations dispute report. This is a higher threshold for refusal than the corresponding provisions of the federal Access to Information Act, which requires that information be supplied in confidence or be reasonably expected to result in material financial loss or gain to the party that submitted the information, or to interfere with negotiations or result in injury or prejudice to that party.
Implications for Companies
As a result of the pending amendments to FIPPA, companies entering into agreements with Ontario hospitals may wish to take steps to protect proprietary information that is provided to hospitals. This may include prominently marking such information as "confidential" and including a statement in cover letters that the information supplied is subject to FIPPA's third-party information exemption. Furthermore, consider including in agreements a requirement that the hospital notify you of any requests for access to the agreement or related information.
Footnotes
1 The Broader Public Sector Accountability Act, 2010 also prohibits certain organizations that are funded by the Ontario government from using public funds to hire external lobbyists. The Act applies to hospitals, including "private" hospitals that have received public funds, and to local health integration networks, and imposes specific reporting obligations regarding the use of consultants by these entities.
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The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.