Canada: Records In The Possession Of A Hospital Which Pre-Date January 1, 2007 Are Subject To The Ontario Freedom Of Information And Protection Of Privacy Act In Certain Circumstances.

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 made.

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 the Act."

Huron was ordered to consider the access the request on the basis that it included the agreements which pre-dated January 1, 2007.

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 is excluded.

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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