Life Science Compliance Update

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July 26, 2017

Ontario Enters the Transparency Spotlight


Over three years ago, the Toronto Star filed a freedom of information (FIPPA) request with the Health Ministry in Ontario, Canada, seeking physician-identified data on the top 100 billers. Last year, the information and privacy commissioner ordered the disclosure of the top billers’ identities, along with amounts each receives in payments from the taxpayer-funded insurance plan.

The Health Ministry allowed partial access to the Star, including payments and most medical specialties, withholding physician names. The Ministry withheld the names as it determined releasing the names would be an “unjustified invasion of privacy.”

However, two groups of doctors, along with the Ontario Medical Association, fought the disclosure all the way to Ontario’s Divisional Court. The three-judge panel dismissed an application to quash the aforementioned order from the Information and Privacy Commissioner. The panel ruled that the order was a reasonable one, and that the ministry shall release the names of the highest-paid physicians public.

The groups opposing the release of information argued that an adjudicator with the Information and Privacy Commissioner erred in departing from previous commission orders that found such information was personal. That adjudicator, John Higgins, concluded that physicians receive OHIP payments in relation to their business or profession. Further, he noted that the money does not reflect the actual income of the physicians, because doctors pay overhead expenses out of the payments received.

The lawyers argued that,

The adjudicator’s determination that the information being sought was not ‘personal information’ is wrong as a matter of both fact and law and is clearly unreasonable. While he recognized the existence of those prior determinations … he chose to ignore or distinguish them on specious grounds while ignoring the overwhelming weight of authority they supply.

They also argued that publishing the names of the top billers “accomplishes nothing other than naming and shaming.” The lawyer for the groups argued in front of the judges – “who really cares what the names are? The question is whether or not the ministry is properly administering a multibillion fund and whether the question of the proper operation of that fund…can be accomplished without disclosing names.”

The Court rejected the argument made by the doctors that the Star had failed to establish a proper rationale for the disclosure. It found that the argument ignores the well-established rationale that underlies access to information legislation. The decision states, “[t]he rationale is that the public is entitled to information in the possession of their governments so that the public may, among other things, hold their governments accountable.”

Justice Ian Nordheimer stated that the Star did not even need a reason to obtain access to the information. The FIPPA requires that the information be provided unless a privacy exemption is demonstrated. However, once it is determined that the information is not personal information, there is no statutory basis to refuse to provide it. The decision further notes, “The proper question to be asked in this context … is not ‘why do you need it?’ but rather ‘why should you not have it.”

This ruling will affect other Information and Privacy Commissioner cases, including an appeal made by the Star, seeking the release of physician-identified billings for all Ontario doctors. The Commissioner previously put this appeal on hold, pending the outcome of this case.

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