Order PO – 3445 Appeal PA13-267 Huron
Perth Healthcare Alliance January 7, 2015
The Huron Perth Healthcare Alliance ("Huron") received
an access to information request under the Ontario Freedom of Information and Protection of Privacy
Act ("FIPPA") for agreements related to respiratory
services. These services are contracted out to a home care
provider. Huron and the home care provider first entered into
agreements for services in 1995. These agreements were subsequently
amended in 2004 and 2011.
In response to the access request, Huron identified three
records in its possession which it may need to disclose because of
the request: the two 2011 agreements and the combined financial
statements which were publicly available on its website. Huron also
notified the home care provider under section 28 of FIPPA that an access to
information request for information which related to it had been
Huron was also of the view that 1995 and 2004 agreements were
not compellable under FIPPA on the basis of section 69(2). Section 69(2) states that FIPPA
only applies to records which came into the custody and control of
a hospital after January 1, 2007.
Huron denied access to the 2011 agreements on the basis that
they contained third party information (exception in s. 17(1)) and contained information related to
the economic and other interests of Ontario (exception in s. 18(1)).
The requestor appealed Huron's decision to the Office of the
Information and Privacy Commissioner. The case came before Gillian
Shaw, an adjudicator in the Office of the Information and Privacy
Commissioner. The home care provider participated in the appeal as
an affected party.
Following the mediation step of the appeal process, Huron agreed
to release redacted versions of the 2011 agreements to the
requestor. Huron denied access to the agreements from 1995 and 2004
on the basis of section 69(2) of FIPPA.
As a result, the adjudicator was required to determine whether
FIPPA applied to the 1995 and 2004 agreements.
Huron and the home care provider argued that FIPPA did not apply
to the prior agreements because they were from before January 1,
2007. In support of their position, they also relied on a previous
order of the Information and Privacy Commissioner, Order PO – 3223, which found that
agreements entered into prior to 2007 were excluded from disclosure
even if they remained in force after January 1, 2007. Huron and the
Home Care provider argued that the prior versions of the
respiratory services agreements should similarly be excluded.
The adjudicator reviewed the 2011 agreements in detail. She
found that the agreements incorporated provisions from the previous
agreements by reference without reproducing the wording of the
previous agreements. As a result, she concluded that it was not
possible to understand the 2011 agreement without the 2004 and 1995
versions of the agreements.
The adjudicator found that disclosure of amending agreements was
required to fulfill one of the purposes of FIPPA which is to
encourage accountability for expenditures by public hospitals.
Overall, the adjudicator found that "it would be contrary to
the intention of the Act to find that an agreement that was
extended and modified post-January 1, 2007 is outside the scope of
Huron was ordered to consider the access the request on the
basis that it included the agreements which pre-dated January 1,
Of interest, the adjudicator also considered the issue of
whether the institution or the requestor had the burden of
establishing that the records were excluded by section 69(2) of
FIPPA. The adjudicator found that the institution has the burden
because it is in the best position to determine whether the record
In this case, the adjudicator favoured a broad interpretation of
the provisions of FIPPA and determined as this is required to give
effect to the objects of the Act. As such, where documents or
agreements which pre-date January 1, 2007 are required to
understand more recent documents or agreements, technical
objections to the application of FIPPA may not be successful. It is
important to note, however, that disclosure of documents or
agreements which pre-date January 1, 2007 may still be precluded by
the exemptions found in sections 12 to 22.
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