BACKGROUND

A request was submitted to the Ministry under the Act for access to the following information:

…copies of Unusual Occurrence Reports filed by certain long term care facilities (nursing homes and homes for the aged) in Ontario.  The reports (the white copies) are filed to the regional office of your ministry.

A blank copy of a report is attached.  Below you will find a list of the ministry regions and the facility providers for which I would like reports.

I would like the reports, in each case, for the years 2000, 2001 and 2002.

…

Please remove the following personal information so that the documents can be released without a privacy concern:  Name of resident, date of birth of resident.

I am requesting a fee waiver in this case.

The decision read: “In summary, I find that the subject matter of the serious occurrence reports and the annual summaries is a matter of public rather than private interest; this subject matter relates directly to a public health or safety issue; dissemination of the records would yield a public benefit by disclosing a public health and safety concern and contributing meaningfully to the development of understanding of this important health or safety issue; and it is highly probable that the appellant will disseminate the contents of the records.  Accordingly, the appellant is entitled to a few waiver, provided it is “fair and equitable” to do so in the circumstances.”

(a)   The cost of processing varies from the estimated amount.

The costs presented will be actual amounts not estimated amounts.

(b)   The payment will cause financial hardship for the requestor.

The requester’s employer reported [a significant income].

(c)    Dissemination of the record will benefit public health or safety.

Long-term care facilities are mandated by legislation to report any unusual occurrences to the Ministry and in the same report provide a plan to correct the situation or prevent reoccurrence.  The reported incidents are part of the daily operation of a facility and the dissemination of the incident and/or the solution would not benefit public health or safety.

During the course of mediation, the appellant’s representative advised the mediator that although she submitted a deposit of $2,913.50 to the Ministry, which represents 50% of the fee estimate contained in the most recent interim decision, she had also advised the Ministry that she would continue to appeal the Ministry’s denial of the fee waiver.

After receiving the deposit from the appellant, the Ministry issued a final fee statement wherein the total fee was assessed at $5,004.20 with a balance owing of $2,090.70.  The appellant submitted the balance owing to the Ministry, received the requested records, but clarified that she was still pursuing the fee waiver of $5,004.20, and took the position that the fee should be waived pursuant to section 57(4)(c) of the Act. 

The Ministry confirmed that it was maintaining its position with respect to the fee waiver request, as noted in the first two interim decision letters, and therefore denied the fee waiver request. 

As a result, the issue of the fee waiver, which is the sole issue in this appeal, remains in dispute. 

I sent a Notice of Inquiry to the appellant, initially, and received representations in response.  I then sent the Notice of Inquiry, along with a copy of the appellant’s representations, to the Ministry.  The Ministry also provided representations.

DISCUSSION:

FEE WAIVER

General principles

Section 57(4) of the Act requires an institution to waive fees, in whole or in part, in certain circumstances. Section 8 of Regulation 460 sets out additional matters for a head to consider in deciding whether to waive a fee. Those provisions state:

57. (4) A head shall waive the payment of all or any part of an amount required to be paid under subsection (1) if, in the head’s opinion, it is fair and equitable to do so after considering,

(a)        the extent to which the actual cost of processing, collecting and copying the record varies from the amount of the payment required by subsection (1);

(b)        whether the payment will cause a financial hardship for the person requesting the record;

(c)        whether dissemination of the record will benefit public health or safety; and

(d)       any other matter prescribed in the regulations.

8. The following are prescribed as matters for a head to consider in deciding whether to waive all or part of a payment required to be made under the Act:

1.                  Whether the person requesting access to the record is given access to it.

2.                  If the amount of a payment would be $5 or less, whether the amount of the payment is too small to justify requiring payment.

In reviewing a decision by an institution denying a fee waiver, this office may decide that all or part of a fee should be waived [Order MO-1243].

Whether dissemination will benefit public health or safety

In this appeal, the appellant relies on section 57(4)(c) (benefit to public health or safety).  In prior orders of this office, the following factors have been found relevant in determining whether dissemination of a record will benefit public health or safety:

• whether the subject matter of the record is a matter of public rather than private interest

• whether the subject matter of the record relates directly to a public health or safety issue

• whether the dissemination of the record would yield a public benefit by disclosing a public health or safety concern, or contributing meaningfully to the development of understanding of an important public health or safety issue

• the probability that the requester will disseminate the contents of the record
  
  [Orders P-2, P-474, PO-1953-F, PO-1962]

In addition, this office has found that dissemination of records will benefit public health or safety under section 57(4)(c) where they relate to the quality of care and service at group homes [Order PO-1962], and the quality of care and service at long-term care facilities (nursing homes) [Order PO-2278].

Representations

In this appeal, the appellant begins by reviewing her history and the history of her employer (which she identifies as a newspaper with a large circulation and readership in Ontario), the success she has had in investigating governments and government programs, and the positive results that these actions have initiated.  She then states:

[Our employer] is committed to using the Act to obtain and disseminate information that will further the good of the public.  It is for this reason that a series of [requests under the Act] were made … for long term care records maintained by the government.

The appellant then states:

[The requester] was billed for the records at issue in this request.  [The requester] paid the bill, obtained the records (and others through the Act), and disseminated them to the public through a series of newspaper articles that probed the unfortunate state of care in nursing homes.  Following publication, the Minister of Health announced that he plans a “revolution” in the nursing home sector.  He made this announcement as a direct result of [the requester’s] stories.  

The appellant also refers to the decision by Assistant Commissioner Mitchinson in Order PO-1962, in which the Assistant Commissioner held that the quality of care and service at group homes is a public interest.  The Assistant Commissioner stated:

I find that the quality of care and service at group homes and day programs [funded] by the Ministry is a public rather than a private interest.  Not only are these agencies funded by tax dollars, but they also provide services to a wide range of people across the province, and both parties’ representations acknowledge that a significant number of people with developmental disabilities use the services provided by these organizations. 

The appellant acknowledges that it is not enough that disclosure of a record be in the public interest, but also that there must be some connection between the “dissemination” of the record and a benefit to public health or safety.  The appellant then states:

The attached series of nursing home stories by [the appellant] make that case.  Using the records at issue, and others, we have proved that residents of nursing homes are subject to neglect, abuse, injuries and other forms of maltreatment.  Leaders in the nursing home field … agreed with our conclusions.  The Minister of Health … agreed and promised a “revolution”. 

The appellant provided documentation supporting her position on these matters.

Furthermore, the appellant disputes the Ministry’s position, as set out in its earlier decisions, that the Ministry is properly monitoring itself, and that the dissemination of the records would not benefit health and safety.  The appellant takes the position that her investigation showed flaws in the tracking, investigation and making of determinations regarding the nursing homes that need intense investigation.  The appellant also provides supporting information for its position.  Furthermore, the appellant states that the results of her examination of the records confirmed the discrepancies in the information provided by the Ministry.  The appellant states:

These [records] and other information obtained through [the Act] led to the conclusion that the Ministry is not properly scrutinizing its own information.  … we were able to bring scrutiny to this system, and the Minister of the institution has announced that the Ministry will now take action.

The appellant’s representations were shared with the Ministry. 

In its representations, the Ministry agrees that the subject matter of the records is a matter of public interest.  It states, however, that this does not end the matter, but that I must also determine (based on the principles set out in Orders 2 and PO-1962), that

• the subject matter of the records relates directly to a public health or safety issue;
• the dissemination of the records would yield a public benefit; and
• the probability that the requester will disseminate the contents of the record

With regard to whether the subject matter of the records relates directly to a public health or safety issue, the Ministry takes the position that, although the records relate to health issues concerning a given segment of the population, this does not necessarily render it a “public health” issue.  The Ministry identifies a concern that a broad interpretation of this criterion would result in its application to almost all records held by the Ministry. 

Concerning whether the dissemination of the records would yield a public benefit, the Ministry refers to the fact that an earlier Audit report had brought a number of the problems referred to by the appellant to light, and that the Ministry had been actively involved in a review of all Long-Term Care procedures and reporting requirements.

The Ministry also takes the position that the public did not benefit from the dissemination of the records provided to the appellant in this case.  The Ministry states:

The Serious Occurrence Reports [SORs] that involve client incidents and the statistical data provided in the FMIS reports were not reflected in the articles produced by the appellant.  The articles do not attribute the source as these records, thus the Ministry … disagrees with the appellant that the dissemination factor is relevant.  These articles were of an anecdotal nature focusing on the experience of individuals and many interviews with Nursing Home staff.

With respect to the probability that the requester will disseminate the contents of the record, the Ministry takes the position that this factor unduly benefits media requesters, and should therefore not be given significant consideration in this case.

Findings regarding public benefit

Based on the representations of the parties, and on Orders PO-1962 and PO-2278, I am satisfied that the subject matter of the records is a matter of public interest, and that the dissemination of them would benefit public health or safety.  In addition, in this appeal, I am satisfied that their dissemination has benefited public health and safety. 

It is clear that the quality of care at institutions funded by the government are matters of public concern.  The records at issue in this appeal, namely, the unusual occurrence reports for Long-Term Care facilities for the identified years, reflect the quality of care at facilities funded by the government.  These facilities assist particularly vulnerable members of society, and I am satisfied that the records relate to a public rather than a private interest.

I am supported in this finding by Adjudicator Sherry Liang’s decision in PO-2278, where she found that dissemination of records relating to care and service at nursing home facilities were a matter of public interest.  She stated:

I am satisfied that it has been shown that dissemination of the records will benefit public health or safety.  Prior orders have recognized that the quality of care and service at institutions funded by the government are matters of public concern (see Orders P-754 and PO-1962), and the Ministry does not disagree with this.  The records at issue, in the words of the appellant, “paint a picture” of the quality of care and service at nursing home facilities funded by the Ministry.  Undoubtedly, private interests are also reflected in the records, to the extent that they document concerns raised about the care of specific residents at specific nursing homes.  However, the appellant is not seeking access to the information of a specific resident and is content to receive the records without any personal information.  I am satisfied that taken as a whole, without personal information, the records are more a matter of public rather than private interest.

I do not accept the Ministry’s position that because an earlier Audit Report had brought a number of the problems referred to by the appellant to light, and because the Ministry had been actively involved in a review of all Long-Term Care procedures and reporting requirements, that the subject matter of the records does not relate directly to a public health or safety issue, and that the public did not benefit from the dissemination of these specific records.  Assistant Commissioner Mitchinson addressed a similar argument in Order PO-1962, in which he stated:

While the Ministry has presented evidence that there are a number of safeguards and organizations in place to monitor and scrutinize the care provided at these transfer payment agencies, it does not necessarily follow that media attention on this issue would not contribute to the public's understanding of the health and safety issues surrounding these agencies.

In my view the public has benefited from the dissemination of the records, notwithstanding the other processes that are in place to monitor the procedures and reporting requirements at these facilities.

The Ministry states that newspaper articles produced by the appellant do not attribute the source as the records at issue in this appeal, and that the articles were of an anecdotal nature focusing on the experience of individuals and many interviews with Nursing Home staff.  However, I am satisfied based on the appellant’s submissions, including the newspaper articles she attached to her submission, that the records at issue, although not the sole source, were one source for the published articles.  Indeed, these records are specifically mentioned as source records.

I also do not accept the Ministry’s position that the factor of whether or not the requester will disseminate the contents of the record should not be given significant consideration in this case as it unduly benefits media requesters.  The public interest in the dissemination of the records is the issue that I am addressing, and the ability of the appellant to do so is clearly a factor in any analysis of this issue.  Furthermore, in this appeal I find that the fact that the requester did publish a series of newspaper articles based partly on the contents of the records is a significant consideration.  The subsequent public responses and reactions to these published articles are further evidence of the weight to be given to this factor.

For the purposes of sections 57(4)(a), (b) and (d), I find that costs paid by the appellant were the actual amounts and not estimated amounts, and that the appellant was given access to the records.  Furthermore, the parties agree that the payment will not cause a financial hardship for the appellant.

As far as photocopy charges are concerned, in light of the position taken by the appellant, and the large number of records, I find that it would not be fair and equitable in the circumstances to require the Ministry to absorb the costs of these charges, particularly in light of the user pay principles contained in the Act.

I therefore find that the requirements for a fee waiver in section 57(4) of the Act have been established for all search and preparation charges in this appeal, but not for photocopy charges.  Accordingly, I will order the Ministry to waive the search and preparation charges, and to refund these fees to the appellant.

ORDER:

1.      I uphold the Ministry’s decision not to waive the photocopying charges of $204.20 in this appeal.

2.      I order the Ministry to waive the search and preparation charges, and to refund these fees to the appellant.

3.      To ensure compliance with Provision 2, I reserve the right to require the Ministry to provide me with evidence of compliance, upon request.

Original signed by:                                                                     October 20, 2004                                       

Frank DeVries