Summary

Continuing a line of cases dealing with access to information surrounding dealings between government and pharmaceutical manufacturers, in two decisions released on November 6, 2013, the Ontario Information and Privacy Commissioner upheld certain governmental exemptions but released other information relating to contracts and other information held by the Ontario Ministry of Health and Long-Term Care.

Decision PO-3275

This case involved information contained in a number of records relating to volume discount payments received by the ministry from a number of drug manufacturers.  The ministry had withheld portions of the information on the basis of  third party information (section 17) and the government’s own exemption as to economic interests (section 18).  The records uncovered included a chart of estimated savings as a result of Listing/Pricing Agreements, information indicating the aggregate amount of savings to the government over 2007/2008, information as to the overall weighted average percentage of savings per drug product, and finally, two separate agreements between manufacturers and the ministry.  The government and third parties claimed various exemptions and the requester and certain manufacturers appealed to the Commissioner.

In considering the government’s claimed exemptions, the Commissioner upheld certain of them but denied others.  In particular, in respect of information in the agreements that would disclose the actual amount of guaranteed savings/payments to the ministry and the process of how the figure is calculated, the Commissioner found that disclosure of the information could reasonably be expected to both prejudice the ministry’s economic interests and be injurious to the Ontario government’s financial interests.

However, in respect of the aggregate or summary information representing the ministry’s savings overall for a particular period,  the Commissioner found that the ministry had not provided sufficiently detailed and convincing evidence that disclosure of the information could reasonably be expected to result in the harms set out in section 18.  The information related to a number of third parties.  The Commissioner held  there is no way to extrapolate the individual portion paid by a particular affected party. The Commissioner also found that the overall aggregate information does not qualify as third party information under section 17 of the Act.  Notably, however, the Commissioner did find that the overall weighted average volume discount was subject to the government’s claimed exemption, and could result in harm as it could affect the ministry’s ability to negotiate favorable volume discount percentages in current and future negotiations.  In the result, the Commissioner found the information to be exempt from release.

In respect of the two contracts between pharmaceutical companies and the government, the Commissioner found the pricing information to be exempt from release.  However, in respect of the remaining portions of the two contracts at issue, the Commissioner found that the third party exemptions claimed under section 17(1) had no application.  The three part test must be satisfied.  While the information at issue (other than the pricing terms) was commercial or financial information, it was not “supplied” but rather was negotiated as between the parties. The remaining information in the agreements (other than the pricing/savings terms) was therefore ordered disclosed.

Decision PO-3276

This case involved an appeal of the government’s decision to release certain information contained in a 4-page Letter of Intent from the Ministry of Health and Long-Term Care to the appellant pharmaceutical manufacturer, and a 2-page letter from the appellant to the ministry.

The ministry did not claim any exemptions in respect of the two records at issue, despite the fact that they did contain pricing information.  While the adjudicator notes that, “The contents of a contract involving an institution and a third party will not normally qualify as having been “supplied” for the purpose of section 17(1). The provisions of a contract, in general, have been treated as mutually generated, rather than “supplied” by the third party, even where the contract is preceded by little or no negotiation or where the final agreement reflects information that originated from a single party.”  Nonetheless, the adjudicator held, “Based on my review of the records, I find that some sections of the letter of intent includes pricing information which, if disclosed, could permit the requester to accurately infer the appellant’s baseline pricing.  On this basis, I find that the portion of the letter of intent dealing with the pricing and payment information was supplied to the ministry for the purposes of section 17(1).  I further find that this information would have been supplied with a reasonable expectation of confidentiality as section 11 of the record explicitly sets out the confidential terms of the agreement.”  The remainder of the contents of the Letter of Intent however were not found to have been supplied.

In respect of the two-page letter, the adjudicator found that it contained information that was “supplied” by the appellant to the ministry; it refers to a discussion between the appellant and the ministry and a possible agreement arising from that discussion.  It was also found to contain commercial information supplied by the appellant, and with an implicit expectation of confidentiality.

Interestingly, while release of the pricing information was found to be likely to cause harm, the appellant did not provide “detailed and convincing evidence” of harm in respect of any information, according to the adjudicator.  The adjudicator found that, “The failure of a party resisting disclosure to provide detailed and convincing evidence will not necessarily defeat the claim for exemption where harm can be inferred from other circumstances.  However, only in exceptional circumstances would such a determination be made on the basis of anything other than the records at issue and the evidence provided by a party in discharging its onus.”

In the result, the pricing information contained in the Letter of Intent was exempt from release, but all other portions of the Letter of Intent, and the entirety of the two-page letter, were ordered disclosed.

Conclusion

The two recent cases follow the earlier line of Ontario cases (see our Pharma in Brief report dated October 2, 2013 under which requesters have been denied access to pricing and financial information that is identifiable to specific manufacturers, but access has been granted to certain other types of information. These cases relate only to Ontario.  To the extent that other provinces may have agreements with pharmaceutical manufacturers, the confidentiality of information will be determined under each province’s legislation.

Link to decisions:

PO-3275:  http://www.ipc.on.ca/English/Decisions-and-Resolutions/Decisions-and-Resolutions-Summary/?id=9343 

PO-3276:  http://www.ipc.on.ca/English/Decisions-and-Resolutions/Decisions-and-Resolutions-Summary/?id=9344