   |
   |
For Release April 24, 2002
Ombudsman Releases Access and Privacy Annual ReportExperiences in 2000 suggest a need for improvement in compliance with both the letter and spirit of the access and privacy legislation
In 2000, the Office of the Manitoba Ombudsman opened and closed a record number of access and privacy related complaints under The Freedom of Information and Protection of Privacy Act (FIPPA), The Personal Health Information Act (PHIA), and The Ombudsman Act.
Of the 224 access and privacy complaints received by the Ombudsman in 2000, 66% were about provincial government departments and agencies, 21% were about local public bodies, 7% were about health professionals, and 6% were about health care facilities.
"Access and privacy legislation is not about the provision of a government program or the delivery of a public service," said Barry Tuckett, the Manitoba Ombudsman. "It is about protecting the rights we enjoy as Canadians to an open and accountable government that respects our fundamental right to personal privacy."
Some of the major challenges in 2000 included:
- Several access requests involving the provincial government were delayed by time extensions taken by the government, the process within government was changed for coordinating access requests, and the way in which government responded to requests for information contributed to an unprecedented volume of complaints to the Ombudsman's office.
- Significant effort was expended by the Ombudsman's office investigating complaints generated when the provincial government denied members of the media access to provincial government information. These included requests to all provincial government departments for ministerial briefing notes, costs and other information concerning the travel of various ministers and the Premier.
- A complaint was made to the Ombudsman when a media request for access to attendance records for Treasury Board meetings was denied on the grounds that FIPPA provides mandatory exceptions to disclosure for matters involving Cabinet or its committees. When information was finally released to the applicant, the disclosure was made on the basis of Cabinet consent rather than by using other more routine mechanisms available under FIPPA.
"We remain of the opinion that the release of the information requested would not have revealed a confidence of Cabinet and that FIPPA respects basic parliamentary conventions and principles," said the Ombudsman. "I am concerned that the actions and decisions of the provincial government in some of 2000's high-profile challenges have raised questions about the level of government commitment to FIPPA," said Tuckett. "While these instances are of particular concern, it is encouraging to note all the same that government has generally responded well to access requests and has maintained a commendable standard of compliance with the legislation overall."The Government of Manitoba also declared its intention to conduct a public review of FIPPA. Comprehensive reviews of the legislation must be undertaken by December 11, 2002 respecting PHIA, and May 4, 2003 respecting FIPPA.
"Hopefully these reviews will not only identify and strengthen the public's right of access to information and protection of personal privacy, but will also serve to demonstrate commitment to these rights," Tuckett stated. "I feel there is no greater accountability mechanism than public scrutiny of government actions and decisions in an open and transparent environment, an essential component of a democratic society."
Under The Ombudsman Act, the Ombudsman investigates complaints about any act, decision, recommendation or omission related to a matter of administration by any department or agency of the provincial government or a municipal government. The Ombudsman Act was expanded on January 1, 1997 to include more than 200 municipalities. The Personal Health Information Act came into effect on December 11, 1997. The Freedom of Information and Protection of Privacy Act became law on May 4, 1998, encompassed the City of Winnipeg on August 31, 1998, and was proclaimed on April 4, 2000 for more than 370 local governments, educational and health care bodies. With responsibilities as an independent oversight agency under all three acts, Manitoba's Ombudsman now has one of the broadest jurisdictions for an Ombudsman in Canada.
Created in 1970, the office of the Manitoba Ombudsman exists to promote fairness, equity and administrative accountability through independent and impartial investigation of complaints and legislative compliance reviews.
Ombudsman - Year 2000 Highlights of Statistics and InvestigationsOverview of Complaints in 2000:
- The Manitoba Ombudsman received 224 access and privacy complaints in 2000.
Of these, 133 were closed and 91 were carried forward to 2001. Including cases carried over from previous years, a total of 170 complaint cases were closed in 2000.
- 80% of the total number of complaints involved access to information.
The numbers for 2000 also indicate a steep upward trend in investigation work:
 |
PERIOD | COMPLAINTS OPENED | COMPLAINTS CLOSED | COMPLAINTS PENDING AT YEAR-END | |
|||
|
1988-1996
|
|
an
average of 41
|
|
an
average of 39
|
|
an average of 11
|
||
|
1997-1999
|
143
|
116
|
67
|
|||||
|
2000
|
|
224
|
|
170
|
|
119
|
Highlights of Some of the Investigations Conducted in 2000
- Manitoba Consumer and Corporate Affairs
Commenting on the Bulk Disclosure of Data on Deceased PersonsThe Vital Statistics Agency of Manitoba Consumer and Corporate Affairs requested that the Ombudsman's Office comment on the implication under The Freedom of Information and Protection of Privacy Act (FIPPA) of renewing an agreement to provide personal information concerning deceased individuals to the Office of the Chief Electoral Officer at Elections Canada for the purpose of updating the National Register of Voters. Information was subsequently released.
- Manitoba Justice
The FIPPA-PHIA Puzzle and Privacy after DeathAn individual complained under FIPPA that he had been refused access by Manitoba Justice (Chief Medical Examiner) to the records for which he applied concerning a third party, his deceased relative. The complaint was not supported as the third party had been deceased for less than ten years and the circumstances involved in the case provided reason to believe that disclosure of the information could be an unreasonable invasion of the third party's privacy.
- Manitoba Labour
Release of Fatality Reports: An Expectation of HarmA complaint was made under FIPPA against Manitoba Labour that access was refused to documentation in the possession of Workplace Health and Safety regarding a workplace accident that resulted in a death. As release of the information could reasonably be expected to affect Court proceedings, the Ombudsman could not recommend that the information be released at the time. The public body advised that it would provide the applicant with severed information once the Court proceedings were concluded.
- City of Winnipeg
Ingredients for Preserving Personal Information Privacy: An Individual and Private InformationAn individual complained that he had been refused access to phone numbers and the addresses of people who had made presentations at a public consultation meeting on October 5, 1999 regarding "Winnipeg Plan 2020".
The public body advised us that a total of 23 presentations relevant to this request were made at the public meeting held on October 5, 1999. Nine of the presenters were private individuals and the remaining 14 presentations were made on behalf of various organizations. The mailing addresses for three of the organizations were the home addresses of members of each organization.
Disclosure of the personal information of the three private individuals who had chosen to include their contact information in the written version of their presentation did not seem to be an unreasonable invasion of their personal privacy because the information was included in their publicly available reports. Our office discussed with the public body the release of the information relating to these three private individuals and the contact information for the 11 organizations that did not constitute personal information. The public body decided to disclose this information to the requester.
- Rural Municipality of Ritchot
More Information SurfacesAn individual complained that the Rural Municipality of Ritchot, a public body under The Freedom of Information and Protection of Privacy Act, refused to provide access to all or part of the records for which he had applied regarding its records, notes and documentation from the review by the Red River Floodway Operation Review Committee and its December 1999 report, as well as documentation to support the position of the former and present governments that the Municipality provided vigorous representation on behalf of upstream residents, in the review of the existing operating rules.
The public body had supplied copies of the minutes of council meetings and stated that they had no other records regarding the Red River Floodway Operation Review Committee. The complainant advised our office that he believed that there were additional records in existence that were responsive to his request. Additional documents were located in the course of the complaint investigation. Enquiries were made with third parties about release of these records and consent for release was obtained. As the public body provided the requester with all of the records we understood were responsive to his request, we concluded our investigation of this matter.
- PHIN and Games
Sometimes Everybody is ResponsibleAn investigation was launched under The Personal Health Information Act (PHIA) after an individual informed us that certain youth sports teams collect the Personal Health Information Numbers (PHIN) of athletes, reportedly for the purpose of obtaining health care in the case of injury. In the opinion of the individual, a primary reason for the collection of the PHIN by some teams was to establish authoritatively the place of residence of young athletes to combat some forms of alleged "stacking" of teams with preferred players.
Section 26 (2)(a) of PHIA does permit the collection and use of the PHIN by sports organizations when its collection and use are for specific circumstances that involve the provision of publicly funded health care. However, according to PHIA, those who collect or use the PHIN for any purpose not related to the provision of publicly funded health care could be guilty of an offence and could be liable for a fine of up to $50,000.
- Health Sciences Centre
Taking Care of Business: Hospital FundraisingAfter an investigation of a health care facility by the Ombudsman's Office, the Winnipeg Regional Health Authority developed a process for its health care facilities to obtain patients' written consent to release his or her name and address to receive information about the health care facility, its related health care foundation and the possibility of making donations to the foundation.
- Misericordia Health Centre
Dial "D" for DisclosureA 15-page report containing personal health information about a patient was faxed in error to an unintended recipient. An investigation by the Ombudsman's office determined that Misericordia staff had received education on PHIA and were aware of the Centre's related policies and procedures prior to the incident. The misdirected report was recovered very quickly. The Centre reported the breach to the patient, apologized, and reminded staff of the need to be vigilant when transmitting information electronically.
It was determined that the incident was a result of human error and that the Centre was also in substantive compliance with the requirements of PHIA and its Regulation.
- Manitoba Justice
Pardon MeManitoba Justice amended its practices and introduced a Court Division Pardoned Record Policy after an investigation under The Ombudsman Act into a complaint from a person who had been granted a pardon by the National Parole Board. The complainant claimed that an office of the Court of Queen's Bench wrongly released copies of the Indictment, Trial Disposition and Criminal Disposition Sheet to a third party. By telephone, a third party had claimed to be the complainant and managed to have Court of Queen's Bench staff fax out copies of the documents.
The complainant had learned of the disclosure when the documents were provided anonymously to the complainant's employer.