The public has a right to know the names of Ontario’s top billing doctors, the Ontario Court of Appeal (Court) ruled on August 3, 3018 in Ontario Medical Association v. Ontario (Information and Privacy Commissioner). The Court upheld the Information and Privacy Commissioner’s (IPC) decision to release the names of top billing doctors, finding that a person’s gross business or professional income is not “personal information” under the Freedom of Information and Protection of Privacy Act (FIPPA).

BACKGROUND

In 2014, Toronto Star reporter Theresa Boyle requested from Ontario’s Ministry of Health and Long-Term Care (Ministry) the names, specialties, and amounts billed to the Ontario Health Insurance Plan (OHIP) of the top 100 billing doctors for the years 2008 through 2012. The Ministry disclosed anonymized billing amounts and some specialities, but refused to disclose the doctors’ names.

Under FIPPA, the public has right of access to government-held information unless an exemption applies. The Ministry refused to disclose the doctors’ names because of the “personal information” exemption.

THE IPC AND DIVISIONAL COURT DECISIONS

Boyle appealed the Ministry’s decision to the IPC, which also heard submissions from the Ontario Medical Association (OMA) and a number of affected doctors. In 2016, an IPC adjudicator overruled prior decisions that had applied the “personal information” exemption to doctors’ billings and held that the names should be disclosed, following decisions in other contexts that drew a distinction between business and personal income.

The OMA and groups of affected doctors brought an application for judicial review to the Divisional Court, which held that the IPC’s decision was reasonable.

COURT OF APPEAL DECISION

The OMA and the doctors appealed to the Ontario Court of Appeal, arguing that the IPC had unreasonably departed from prior decisions that found doctors’ billings were personal information, misinterpreted FIPPA, and failed to take into account the Canadian Charter of Rights and Freedoms value of privacy.

The Court unanimously dismissed these arguments, stating:

“In our view, where, as here, an individual’s gross professional or business income is not a reliable indicator of the individual’s actual personal finances or income, it is reasonable to conclude not only that the billing information is not personal information… but also that it does not describe ‘an individual’s finances [or] income’”.

IMPLICATIONS

The decision from Ontario’s top court confirms the limited application of the “personal information” exemption to matters that are inherently personal, and highlights the public interest in information about government expenditures. This is consistent with the purpose of freedom of information legislation, which is to make government more open, transparent, and accountable.

 

We wish to acknowledge the contribution of Paul Schabas to this publication.