Summary

In a decision dated October 18, 2012, the Information and Privacy Commissioner (IPC) in Ontario released Order PO 3120, relating to a request, under the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), seeking release of the aggregate total of all payments made by individual drug manufacturers under the Ontario Drug Benefits Program for the year 2009, as amounts relating to product reimbursed by the Ontario government. In the end result, the IPC ordered the information released by no earlier than November 16, 2012, and no later than November 23, 2012 (subject to any appeal that may be filed).

By way of background, the information appeared in a government-held record entitled “Total Aggregate Payment Summary.” When the FIPPA request was received, the Ministry notified a number of third party pharmaceutical manufacturers seeking their comments. In the result, considering the representations made, the Ministry denied access to the requester for the aggregate payment amount on the basis of the exemption relating to third party information (section 17(1)) and the government’s exemption relating to economic and other interests (section 18(1)) of the FIPPA.

The requester appealed the denial of release of the aggregate payment. In the appeal, 47 affected party drug companies were given notice, and the Ministry and 14 of the affected parties responded with representations.

In reaching his decision the Adjudicator noted the purpose of the government’s exemption, 18(1)(c) is to protect the ability of institutions to earn money in the marketplace. Under such an exemption, the institution does not need to establish the information belongs to the institution, that it falls within any particular category or type of information, or that it has intrinsic monetary value. All that is required is that the disclosure of information reasonably be expected to prejudice the institution’s economic interests or competitive position.

While the Ministry raised a number of arguments, the Adjudicator did not accept them, nor did he accept the drug companies’ representations that if the aggregate information was disclosed that they would be less inclined to negotiate similar discounts with the Government of Ontario in the future.

The Adjudicator considered the IPC’s ruling in Order PO-3032, a decision released on January 6, 2012, in which the Adjudicator accepted that the disclosure of information (comprising payment summary sheets for each individual drug company) was exempt under section 18, the government’s exemption. In that case the Adjudicator relied upon evidence from the Ministry that described in detail the potential impact that disclosure of the information would have. In the case at hand, the Adjudicator found that disclosure of aggregate payment information “will not when combined with already publicly available information enable someone to determine the amounts paid as volume discounts by any individual manufacturer.” The position of the Ministry, that there is a reasonable expectation of prejudice and harm to the relationship between the parties to the Ontario Drug Benefit Program if the information is released, was not accepted.

In respect of the arguments from third party manufacturers, the Adjudicator found that the aggregate payment amount does not reveal any information supplied by the drug companies to the Ministry. The decision notes, “Even if each of the component parts which make up the aggregate amount could be said to have been “supplied” to the Ministry within the meaning of section 17(1), the same cannot be said for the aggregate amount.”