For a little more than a year, Ontario hospitals have been subject to the Freedom of Information and Protection of Privacy Act ("FIPPA"). Freedom of information ("FOI") has introduced significant change to many hospitals. Anyone now has the right to obtain access to many types of records in the custody or control of Ontario hospitals. Some FOI requests may relate to sensitive or controversial matters, and some information, once released, may generate a lot of questions and public scrutiny. In anticipation of these contentious requests, and to help ensure that hospital personnel handle them in an appropriate manner, hospitals should consider establishing a "contentious issues management" process.
What is a Contentious Issues Management Process?
In general terms, a contentious issues management process is one that requires the hospital's FIPPA coordinator to notify certain senior hospital personnel or advisors about the particulars of a contentious FOI request once it is received (or once its contentious nature is identified). This process is intended to give senior executives, communications professionals and others the opportunity to prepare briefing or explanatory materials, and to take any other steps to address the outcome of the FOI request. The FIPPA coordinator would provide updates to these individuals as the FOI request is processed, including advising them of the decision to release or refuse access to records or parts of records.
It is important to emphasize that all FOI requests must be handled in accordance with FIPPA. A contentious issues management process is not intended to, and must not, interfere with the normal handling of the request; rather, it is a separate "heads-up" process that operates in parallel to the hospital's FOI activities.
Why is a Contentious Issues Management Process Helpful?
The contentious issues management process anticipates that, once records are released to a requester, they could immediately, or soon afterward, enter the public domain.
For the most part, FIPPA does not allow hospitals to stipulate how a requester may use or share the records or information that he or she receives under FIPPA. The requester is free to cite, publish or share the records, or to use them in whatever manner he or she sees fit. Hospitals are only permitted to impose copyright restrictions on the requester (if they are applicable). In light of this, it is often said that disclosure in response to a general records request is tantamount to disclosure to the world – as soon as records are given to a requester, he or she can, legally and quite appropriately, disclose them to anyone: to the news media, to unions representing hospital employees, to government officials, to members of the community, or to the general public. The purpose of the contentious issues management process is simple: it readies the hospital to handle such publicity.
What Limits Apply to a Contentious Issues Management Process?
- Identity or Motivation of Requester Cannot Impact Access. Except in the case of records containing personal information, the identity of the requester is not relevant to whether he or she gains access to the records.1 Similarly, the requester's motivation for seeking access to hospital records is largely irrelevant, as is the potential use to which the records may be put by the requester. For example, an FOI request by a former employee, a journalist or an unsuccessful bidder in a procurement must be treated in the same manner as any other FOI request. Moreover, as the hospital cannot place restrictions on how the requester can share any information received under FIPPA, the requester's identity may prove misleading. For example, a requester could be an individual who shares the information received under FIPPA with a journalist who then publishes a story which is read by hospital suppliers. When processing an FOI request, and in order to give thorough consideration to the interests of the hospital and other affected parties, a hospital's FIPPA compliance office should assume that records given to a requester may lawfully and appropriately enter the public domain (without dwelling on the identity of the requester).
- Identity of the Requester is Confidential. The identity of a requester is confidential information (and possibly personal information). As such, it must only be shared within the hospital on a need-to-know basis – and, in most circumstances, no one outside of the hospital's FIPPA compliance office needs to know the requester's identity. Hospitals are permitted to share the general category of requester (e.g., news media or commercial entity) to the extent it is relevant to discussions about the handling of the FOI request. Any contentious issues management process should only result in the sharing of the identity of the requester on a need-to-know basis.
- Timing of the Response Under FIPPA Must be Respected. FIPPA sets clear deadlines for processing and responding to requests: generally, a final decision for all requests must be made within 30 days of the date that the request is received by the hospital. Hospitals must report on their responsiveness to FOI requests as part of their annual report to the Information and Privacy Commissioner. A contentious issues management process must not result in a delay in responding to an FOI request.
What Can a Hospital Do?
In order to respond to questions or otherwise address the outcome of a contentious request, a hospital's senior executives and communications personnel may benefit from knowing:
- The nature of the FOI request (promptly after it is received by the hospital).
- What records are relevant to the request (as those records are compiled during the records search process).
- The type of requester (e.g., news media, community group, general public), provided that this categorization does not affect the decision on access.2
- How the request will be resolved (prior to a decision being conveyed to the requester).
In addition, the hospital should take steps to prepare for the records' entry into the public domain. Such preparatory steps might include:
- Drafting responses to anticipated news media questions.
- Compiling related facts that help to place the records in context.3
- Preparing to address stakeholder or community concerns or questions once the information becomes public.
- Where the record relates to a particular challenge or problem, compiling details of steps taken by the hospital to address that challenge or problem.
- Anticipating any reaction by government.
The Information and Privacy Commissioner has recognized that it is appropriate for institutions subject to FIPPA to implement a contentious issues management process, provided that there is no interference with the right of access.As she has explained:
"Our position has consistently been that a system designed to give...senior officials a "heads up" about the disclosure of potentially controversial records is acceptable. These processes or systems are designed to ensure the timely notice and communication of relevant details of the request and the related records, in order to assist the...senior officials when responding to questions...from the media or members of the public."4
While it is acceptable for hospitals to be ready and to anticipate questions, it is not acceptable to use a contentious issues management process to interfere with the decision to grant access, to block release of a record, to obstruct the right of access or to delay the resolution of the FOI request. It is also unacceptable for the hospital to allow the identity of a requester to impact its decision to release records. Except in the case of personal information, decisions must be made without regard to the requester's identity.
1 The identity of a requester is only relevant when personal information is at issue. This is because FIPPA grants a requester greater access to his or her own personal information than to the personal information of another individual.
2 According to the Information and Privacy Commissioner, speaking of such a process in the context of the Government of Ontario, "labelling the source of a particular FOI request as being the 'media' or 'opposition party' is acceptable as long as such labelling does not result in the request receiving a different response." Report into Contentious Issues Management in the Ministry of Finance (May 27, 2011), at 5.
3 Contextual information can often contribute to a better and more complete understanding of the records. Take the example of a requested record showing executive expenses for the most recent calendar year. If expense information for the preceding three years shows a continuing downward trend, that context might be helpful to a proper understanding of the record.
4 Report into Contentious Issues Management in the Ministry of Finance, note 2, at 4.
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.