Representations

As noted, the appellant did not submit representations to this office during the Inquiry process. However, in her letter to the Ministry dated March 24, 2006, the appellant requested that the fee be waived and set out the basis for such a waiver:

I am requesting to have the fees waived, as it is in the public interest to see what kinds of out-of-country cancer treatments have been paid for by the Ministry of Health and to determine if the Ministry is paying for treatments that are still not covered or under review here in Ontario.  Allegations have been made publicly that there are examples/cases where OHIP has covered out-of-country cancer treatments for intravenous-based drugs that are currently under review (and therefore unavailable) to the majority of patients needing these in Ontario.  The release of what OHIP has paid in this regard already would either confirm or refute these allegations.  Moreover, as an MPP and a resident of Ontario, I strongly believe that the expenditure of tax dollars outside of the Province for health care services that are required to be available in Ontario should be publicly available.

In its representations, the Ministry does not dispute that the subject matter of the records is a matter of public interest or that the requester may disseminate the content of the records.  However, the Ministry submits that the subject matter of the records does not relate directly to a public health or safety issue:

The Ministry submits that, while the requester has identified a public interest that would be served by the dissemination of the records, this interest cannot be characterized as relating to an issue of “public health or safety”.  Strictly speaking, “public health” issues relate to health matters governed by the Health Protection and Promotion Act, whose stated purpose is “to provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario.”

The requester is being provided with access to records that relate to medical treatments for ailments suffered by individuals.  The Ministry submits that “public health” issues are issues relating to populational health, such as the prevention of chronic diseases, the promotion of healthy living and the prevention of the spread of infection…

The Ministry submits that treating the records at issue in this appeal as relating to a “public health” issue would result in fee waivers for all general Ministry records that relate to health issues and that such an approach would undermine the “user pay” principle established by the Act. 

Finally, the Ministry acknowledges that this office found in Order PO-2333 that records relating to the quality of care provided in long-term facilities to be related to a public health concern.   However, it notes:

…in PO-2433, the IPC held that there was a “significant distinction” between records that describe the care requirements of facility residents and records that provide details on the quality of care that residents receive.  The IPC also stated in PO-2458 that it was “not persuaded that dissemination of [records that only describe care requirements] would benefit public health or safety”.  The Ministry respectfully submits that the reasoning in PO-2458 is applicable in this appeal, where the records being provided to the requester only describe the nature and cost of medical treatments that were funded for certain individuals, and do not discuss quality of care issues.

Findings

I have carefully considered the representations of the Ministry and the position taken by the appellant.  I find the Ministry’s position that the subject matter of the records does not relate directly to a health or safety issue to be unpersuasive.  Rather, I am satisfied that the records relate to a matter of significant public interest concerning public health, and that their dissemination would benefit public health and safety.

The appellant has pointed out, and the Ministry acknowledged, that the issue of out-of-province payment for health services, including cancer care, is a matter of public interest in Ontario.  Further, the payment for out-of-province treatments that are not covered in Ontario is a matter that impacts on the provision of health care in the province.  In a publicly funded health care system, the manner in which health care dollars are spent has a direct relationship to the quality of health care provided.  Similarly, the question of whether the province is paying for the out-of-province provision of treatments that are not covered in Ontario is of great relevance to the provision of health services and the quality of those services.

This view is supported by the finding of Adjudicator Frank DeVries in Order PO-2333, who found that records which address delivery of health care are matters of public interest.  He stated:

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.

Similarly, in Order PO-2278, Adjudicator Sherry Liang found that the dissemination of records relating to specific health care and service funding by the Government of Ontario would benefit public health or safety.  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. 

Representations

Although not directly addressing the issue of whether a fee waiver would be fair and equitable, the appellant took the position, in its correspondence with the Ministry, that:

…as an MPP and resident of Ontario, I strongly believe that the expenditure of tax dollars outside of the province for health care services that are required to be available in Ontario should be publicly available.

The Ministry submits that it would not be fair and equitable to grant the fee waiver requested. The Ministry points out that an extensive search was conducted and that the appellant has not disputed the Ministry’s fee calculation.

The Ministry also takes the position that the appellant’s status as an MPP does not support the shifting of the burden of the cost of access from the requester to the Ministry:

In PO-608, the IPC noted that the Legislature had granted MPPs special status under section 42(j) of the Act in order to allow MPPs to forward the interests of their constituents.  The IPC went on to state that “[t]his special status was not extended, however, to include the right to access information without the requirement that fees be paid.  In my view, if the Legislature had intended to grant such a right to its Members in the Act, it would have expressly done so, as it did in section 42(j).”  The IPC went on to find that, since the requester’s status in PO-608 as an MPP was not a relevant factor in determining whether a fee waiver should be granted, it would not be fair and equitable to grant a fee waiver in that appeal.  The Ministry respectfully submits that the same reasoning is applicable in the present appeal, and that it would not be fair and equitable to shift the cost of access to the records from the requester to the Ministry.

Analysis

In the circumstances of this appeal, I find that a number of factors support the Ministry’s position and do not favour a fee waiver.  There is no evidence to suggest that the search costs are not the actual cost of producing the records.  The appellant is also being given access to the entire records.  The appellant has not offered any suggestion that the payment will cause a financial hardship.

However, I am satisfied that the factors in favour of a fee waiver should be given greater significance.  I find that the requester worked constructively with the institution to narrow the scope of her request, as outlined above, which resulted in reducing the number of responsive records.  The narrowing of the request was a result of the appellant’s initiative.  Further, there was no reduction in the fee by the Ministry as a result of mediation or the narrowing of the request.

I acknowledge that the appellant has not challenged the search time claimed by the Ministry.  The Ministry cites this as a factor in favour of not granting the fee waiver.  I do note that the Ministry has claimed 25 hours of search time to identify responsive records.  While this may be the actual time spent by Ministry staff, one would expect that for an important issue such as the payment of out-of-town medical treatment, records would be much more readily available.  I am of the view that it would be neither fair nor equitable for the appellant to bear the financial brunt of the Ministry’s less that adequate records management system.

The Ministry submits that the waiver of the fee would shift an unreasonable burden of cost to the Ministry from the appellant and would affect future fee waiver appeals involving this office.  Reference is made to Order PO-2333, where Adjudicator Frank DeVries made a distinction between a request for ordinary Ministry records and extraordinary requests.  He referred to Order PO-2278 where Adjudicator Sherry Liang decided not to order a fee waiver for what she considered “records kept by the Ministry in the ordinary course of its monitoring responsibilities” and the circumstances of his appeal, which he determined to be extraordinary.  In my view, this distinction does not support the position put forward by the Ministry.  As I noted above, although the Ministry might categorize these records as “routine”, the issues to which they relate are not.  There is a significant public interest in the issue of out-of-province funding for medical services.  This public interest will be served by the dissemination of these records.

Finally, while the appellant’s status as an MPP may not be determinative of the issue of whether a fee waiver is fair and equitable, in my view, it is a factor to be considered.  The appellant is an elected official with an interest in and responsibility for public policy.  Significantly, I note that the appellant is an Opposition Critic of the Ministry of Health and Long-Term Care.  Her interest in the issue of out-of-province payments by the Ministry is therefore more that a personal curiosity.  The records in this appeal are relevant to a significant public health issue and are therefore directly related to her legislative responsibilities.  It can be expected that these records will assist in furthering the public debate on this issue through her legislative role.  In my view, shifting the cost of producing these records would not place an unreasonable burden on the Ministry.  Whether this is the case in future requests by MPPs is a matter to be determined on the particular facts of those cases. 

ORDER:

I order the Ministry to waive the fee.

Original Signed By:                                                                             April 23, 2007                        

Brian Beamish