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Ontario Information and Privacy Commissioner Orders the Ministry to Publish the Names of the Top 100 Billers under OHIP

Fasken
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Health Law and Privacy and Information Protection Bulletin

On June 1, 2016, the Information and Privacy Commissioner (IPC) issued Order PO-3617 (PDF), a controversial decision requiring the Ontario Ministry of Health and Long-Term Care (the "Ministry") to disclose the names of the physicians whose billings are the highest in Ontario under OHIP.

Background

The decision arose out of a journalist's freedom of information request to the Ministry for the names and medical specialties of, and payments made to, OHIP's top 100 billing physicians in each of the past five years.

In response to the request, the Ministry disclosed the payment amounts and some physician specialties. However, the Ministry withheld the names of all physicians and some of the associated specialities on the basis that the disclosure of this information would constitute an unjustified invasion of personal privacy, exempting it from disclosure under the Freedom of Information and Protection of Privacy Act (the "Act"). The journalist appealed the decision to the IPC.

A Brief Summary of the Decision

The issue in the appeal was whether the disclosure of physician names and specialties, when connected to the total annual OHIP fee payments to each physician, is inherently personal in nature and therefore considered personal information under subsection 21(1) of the Act. The adjudicator spent a considerable amount of time distinguishing prior IPC decisions on the application of this subsection, and specifically indicated that the IPC was not bound by precedent.

Individuals and organizations arguing against the disclosure of this information expressed concern that the payment data gives a false impression, leading the public to inaccurately equate the amount a physician received in OHIP payments with that physician's income. The amount physicians spend on overhead varies widely by practice and specialty (for instance, overhead costs may include: rent for clinic space, salaries and benefits paid to office staff, medical equipment and supplies). Also, some physicians may practice as a group using a particular physician's billing number, so that all payments to the group appear to be made to a particular physician. These accuracy and reliability concerns led to the assertion that the disclosure of information amounted to an unjustified invasion of privacy.

Ultimately the adjudicator found that:

  • the information at issue is not personal information within the meaning of subsection 2(1) of the Act and therefore, because the records at issue do not contain personal information, they cannot be exempted from disclosure under subsection 21(1) of the Act;
  • the information at issue is not exempt from disclosure under subsection 17(1) of the Act (as third party confidential information) because the Ministry did not meet all three parts of the test under this subsection (i.e., the information is commercial and/or financial information; the information was supplied to the Ministry in confidence; and the disclosure of the information would cause certain harms); and
  • in the alternative, if the exemptions in subsection 21(1) and/or 17(1) do apply, there is compelling public interest in the disclosure of the record that clearly outweighs the purpose of these exemptions, and therefore, the public interest override in subsection 23 of the Act applies to permit disclosure.

Controversial Nature of the Decision

The decision is controversial. The IPC has previously found that the OHIP billing information of identifiable physicians qualifies as personal information. For example, in 1997 the IPC issued a special report when an aide to past health minister Jim Wilson leaked to a reporter the identity of Ontario's top-billing doctor. In this special report, the IPC found that the disclosure was of information related to the doctor's OHIP billings, which constituted "financial transactions in which the individual has been involved" and thus, met the requirements of paragraph (b) of the definition of "personal information" in section 2(1) of the Act.

In light of this order, past Information and Privacy Commissioner Ann Cavoukian said she was "somewhat surprised" by the ruling because it "departs significantly" from previous orders made by the IPC. Ms. Cavoukian stated "[t]he justification for such a departure will need to be explored."[1] 

Next Steps

The affected parties are entitled to request a reconsideration of the order and may also seek a judicial review. If there is no request for reconsideration or judicial review, the data will be disclosed between July 4 and July 8, 2016.

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[1] Toronto Star, June 3, 2016, "Health ministry ordered to disclose names on OHIP billings"