Canada: FIPPA And Ontario Hospitals: Issues For Shared Service Entities

Last Updated: December 1 2011
Article by Daniel Fabiano and Kathryn L. Beck

This bulletin follows our previous bulletin FIPPA and Ontario Hospitals: Maximizing the Records Inventory in which we discussed the need for hospitals to conduct an inventory of hospital records to support Freedom of Information and Protection of Privacy Act ("FIPPA") compliance. This bulletin focuses on shared service entities ("SSEs"), discusses the critical role that SSEs will play in assisting hospitals to meet their FIPPA obligations and sets out some best practices in relation to that assistance.

What does FIPPA mean for SSEs?

On January 1, 2012, FIPPA will apply to Ontario hospitals. FIPPA will not apply to SSEs directly, but SSEs will be expected to assist member hospitals to comply with that Act.

The most significant aspect of FIPPA, from the perspective of an SSE, is its freedom of information ("FOI") provisions. Under FIPPA, anyone has the right to access a broad range of records in the custody or control of Ontario hospitals. Many of these records will be in the custody of SSEs, as SSEs regularly receive and create records on behalf of their member hospitals. Often, SSEs act as agents for one or more hospitals when they conduct procurements, negotiate contracts, receive information, communicate with vendors, and create records about vendors, goods and services; as a result, any records relating to these activities (as agent) will likely be subject to FIPPA's FOI regime. This means that anyone may make an FOI request for access to these records, even if they are kept at the SSE and not at the hospital. These records could include:

  • contracts entered into by one or more hospitals;
  • procurement documents (e.g., requests for proposals);
  • product selection committee materials (including notes of committee members; correspondence with committee members; correspondence with bidders);
  • purchase orders;
  • accounts payable and invoices;
  • correspondence with vendors; and
  • files regarding hospital personnel who are supervised by the SSE.

Given that SSEs create and keep many hospital records that will fall under FIPPA, SSEs will inevitably play an important role in a hospital's FIPPA compliance activities. This role will include: (1) helping hospitals respond to FOI requests; and (2) ensuring that vendors and bidders are aware of FIPPA's FOI regime.

1. Helping Hospitals to Respond to FOI Requests

SSEs will have a supporting role in processing FOI requests, with their member hospitals in the lead. A hospital will usually have only 30 calendar days to respond to an FOI request (extensions are available in limited circumstances). During that period, the hospital will search for and determine which records are relevant to the FOI request. If relevant records are in the possession of an SSE, and if the SSE was acting as the hospital's agent in receiving or creating those records, the hospital will need to contact the SSE so that the SSE can search for and deliver those records to the hospital. Also, the SSE may be asked to estimate and track its costs in responding to the FOI request (which will enable the hospital to pass along certain costs to the requester).

It is important to note that the hospital's FIPPA compliance office will handle notifying affected parties, considering whether any exemptions or exclusions apply to the records, and communicating with the requester (among other responsibilities). Although it is possible for a hospital to delegate some of these powers and duties to the SSE, such delegation must be carefully considered and formally documented. Absent any delegation, an SSE's role will be largely limited to the search and delivery function noted above.

When assisting with any FOI requests for records created or received by an SSE acting as a hospital's agent, SSEs should adopt the following best practices:

Clear understanding. SSE personnel must ensure they have a clear understanding of the types of records that may be relevant to an FOI request. If an FOI request is unclear, this should be raised with the hospital as soon as possible so that the hospital can either provide guidance to the SSE or seek clarification from the requester, as necessary.

Commence promptly. Record searches should commence promptly so that, if problems arise, the hospital can provide further direction to the SSE, consult with the requester, and/or advise the requester of a time extension to respond to the FOI request.

Reasonable search. FIPPA requires that a "reasonable" search be performed. Generally, this means that the search should have a reasonable scope and be carried out in a logical and detailed way by people who are knowledgeable of the subject matter. The search must encompass all relevant records, regardless of format (e.g., paper copies, drafts, e-mails, etc.), and may need to include archived information or records stored off-site.

Document search activities. Searches need to be documented for two reasons: (1) to account for fees charged to the requester, and (2) to assist in responding to potential future challenges by a requester that a search was not reasonable. SSE personnel charged with conducting record searches should track the same search information as would be expected of hospital personnel, including (among other information): date, time and location of the search, names of personnel involved in the search, and names of individuals consulted as part of the search.

Complete, unmodified records. As part of its search and retrieval function, the SSE must provide the applicable member hospital with complete, unmodified records so that the hospital can consider whether to disclose them (in whole or in part).

Explain significance. SSEs may assist hospital decision-makers by providing advice or explaining the significance of particular records.

2. Standard Wording for RFPs and Contracts

When SSEs prepare procurement documents or negotiate contracts on behalf of hospitals, they will need to ensure that appropriate language is included to reflect the hospitals' obligations under FIPPA. Given the retroactive nature of FIPPA (i.e., FIPPA will apply to records that came into the custody or control of a hospital from January 1, 2007 onward), it is advisable that SSEs begin incorporating notice provisions into these documents now, rather than waiting until January 1, 2012. These notice provisions should indicate that FIPPA will apply to the executed contract and any materials submitted in connection with a procurement.

It is important to remember that hospitals cannot contract out of their obligations under FIPPA. FIPPA will prevail over any blanket confidentiality provisions in a contract or procurement documents.

SSE Policy for FIPPA Compliance

Whether independently or jointly with its member hospitals, SSEs should consider preparing and adopting a FIPPA compliance policy that:

  • ensures procurement documents and hospital contracts include provisions that explicitly references a hospitals' obligations under FIPPA;
  • provides for creation of a high-level inventory of hospital records in the SSE's custody (such inventory to include such details as specified by the hospital), with the SSE to keep the inventory up to date at all times;
  • ensures a high level of responsiveness, by both the SSE (to a hospital's request for records) and hospital FIPPA compliance offices (to ensure that the SSE is given sufficient time to respond);
  • sets out the requirements for a "reasonable" search for records;
  • addresses issues relating to the estimation and payment of fees related to the SSE's records searches (where the SSE acted as the hospital's agent in creating or receiving the records); and
  • provides for consultation among member hospitals if responsive records affect the interests of multiple hospitals (e.g., a vendor contract to which all member hospitals are a party or records created as part of a procurement conducted on behalf of all member hospitals).

Requesters may attempt to make FOI requests directly to an SSE, despite the fact that SSEs are not directly subject to FIPPA. In these circumstances, the SSE and its member hospitals should have a protocol to ensure that FOI requests are immediately forwarded by the SSE to the relevant hospital's FIPPA compliance office (with confirmation of receipt) or otherwise dealt with in an appropriate manner. It will be important for SSEs to be responsive and helpful in dealing with would-be requesters, as this will help to avoid potential problems for member hospitals.

SSE as a Third Party

An FOI request may involve records that are about the SSE itself. This may arise if the requester is seeking access to, for example: the membership agreement between the SSE and its member hospitals; back office service agreements between a hospital (as service provider) and the SSE (as service receiver); or key performance indicators and other reports about an SSE that are held by a hospital. If these records are in the custody or control of a hospital, they can be the subject of an FOI request. The hospital must ultimately make the determination as to whether access to a record that contains information about an SSE will be granted; however, the hospital may have an obligation to notify the SSE and give the SSE an opportunity to explain whether the records should be exempt from disclosure under FIPPA.

FIPPA contains an exemption that permits records (or parts of records) to be withheld from disclosure if they contain certain types of third party information. It will be important for SSEs to familiarize themselves with how this exemption works in order to protect the SSE's own confidential information.

Conclusion

SSEs will be impacted by the application of FIPPA to hospitals. Hospitals and SSEs should ensure that they develop a framework for how SSEs will assist member hospitals to comply with FIPPA as soon as possible and certainly prior to January 1, 2012.

www.fasken.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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