Legislation introduced and given first reading on October 20, 2010 by the Ontario government will make Ontario hospitals subject to the Freedom of Information and Protection of Privacy Act (FIPPA) as of January 1, 2012. Pursuant to the amendments proposed in Part VIII of the Broader Public Sector Accountability Act, 2010 (Bill 122), public and private hospitals would be designated as “institutions” subject to FIPPA. This bulletin discusses the provisions of the draft legislation. At the end, we have included a chart which describes the process followed on a freedom of information request.
The proposed legislation will apply to all records in the custody or under the control of a hospital from on or after January 1, 2007. Under FIPPA, the general public will have a right of access to these records, unless the records are excluded from the right of access or subject to an exemption under FIPPA. Where a record is excluded, FIPPA does not apply to it at all; however, exempt records are still subject to FIPPA, except in specified circumstances where the hospital is able to justify the exemption.
This right of access applies to every person. Unlike the Personal Health Information Protection Act (PHIPA), which allows a person to access records about him or herself, FIPPA allows anyone to access any record held or controlled by an institution on any issue, subject to the exclusions and exceptions set out in the Act.
The “head” of an institution is responsible for its compliance with FIPPA, including making decisions on access to records. For hospitals, the “head” has been defined as the chair of the board.
QCIPA AND PHIPA
The proposed legislation would amend the Quality of Care Information Protection Act, 2004 (QCIPA) so as to exclude “quality of care information” (as defined in QCIPA) from the application of FIPPA. PHIPA already provides that the right of access in FIPPA does not apply to records of “personal health information” (as defined in PHIPA) in the custody or under the control of health information custodians, unless the personal health information can be reasonably severed from the record. The obligation in FIPPA to disclose records, where the disclosure is in the public interest and the records reveal a grave hazard to the public, does apply.
EXCLUSIONS FROM FIPPA
In addition to quality of care information and personal health information, under the proposed legislation, FIPPA would not apply to records relating to:
- operational, administrative or theological issues (ecclesiastical records) of a church or religious organization affiliated with a hospital;
- the operations of a hospital foundation and to charitable donations made to hospitals;
- the administration of the personal practice of a member of a health profession;
- the provision of abortion services;
- meetings, consultations, discussions or communications about applications for hospital appointments (including appointments to the professional staff and the granting of privileges) and anything that forms part of the personnel file of professional staff members; and
- research, including clinical trials, and teaching materials conducted or proposed by an employee of or a person associated with a hospital.
The proposed legislation would only apply to records that came into the custody or under the control of a hospital on or after January 1, 2007. Therefore, FIPPA’s application will be retroactive for 5 years from 2012 and records from prior to 2007 will be excluded.
Proposed exemptions that are specific to hospitals include:
- records that reveal the substance of deliberations of the board, or a committee of the board, during a meeting that a statute authorizes to be held in the absence of the public, where the subject-matter of the meeting is draft by-laws, resolutions, legislation, litigation or possible litigation; and
- records prepared by or for counsel employed or retained by a hospital for use in giving legal advice or in contemplation of or for use in litigation.
There are other standard exemptions from the right of access under FIPPA that apply to all institutions, of which the most likely to be relevant to hospitals are records containing:
- personal information;
- information about labour relations or employment-related matters;
- certain information which would reveal advice or recommendations of a public servant or an employee of or consultant retained by an institution; and
- proprietary information supplied to the hospital in confidence by third parties (including such information contained in proposals responding to RFPs).
There are also provisions in the legislation that will allow the use of information, other than personal health information, in hospital records for fundraising, as there are provisions on fundraising in PHIPA.
The application of FIPPA represents a significant change for hospitals. Whereas previously the only right of access to information was by individuals to their own health records under PHIPA, if the proposed legislation is enacted, many other hospital records will be accessible by the general public. Accordingly, it will be important for Ontario hospitals to make appropriate changes to their record keeping policies, procedures and practices in order to be able to efficiently respond to requests for access made under FIPPA and provide the appropriate notice to potential service providers, staff and employees.
We will be monitoring the status of the Bill and will provide updates on the provisions relating to the application of FIPPA to Ontario hospitals.
Bill 122 is available at: http://www.ontla.on.ca/bills/bills-files/39_Parliament/Session2/b122.pdf
Please see the following page for a chart outlining the process followed on an access request under FIPPA.