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Manitoba Ombudsman posts 17 FIPPA and PHIA investigation reports online

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Mar 18, 2015

Manitoba Ombudsman has posted 17 new investigation reports under The Freedom of Information and Protection of Privacy Act (FIPPA) and The Personal Health Information Act on its website.

“This group of reports reflects our interpretation of various provisions of FIPPA and PHIA, and should be helpful to users of FIPPA and PHIA, and to public bodies applying these laws,” said Acting Manitoba Ombudsman Mel Holley. “Understanding the provisions of the acts and how they are applied in practical terms can help everyone involved and make the entire process work more smoothly.”

We’ve grouped the 17 reports into six categories below: FIPPA privacy; PHIA privacy; solicitor-client privilege; duty to assist; FIPPA access; and PHIA access.

FIPPA privacy – Three of these six reports involve situations where a privacy issue arose when people were seeking service or assistance. The other three involve situations where requests for access to information by one person required a decision about the impact on the privacy of another person.

2014-0029: A complainant alleged that after a call to the City of Winnipeg’s 311 service, an employee of the city’s Water and Waste Department disclosed her name and phone number to a third party business that was doing infrastructure work in the complainant’s neighbourhood. The department acknowledged the disclosure, adding that it was done to help the complainant find answers to her questions. While our office found that the disclosure was not compliant with FIPPA, we were satisfied with steps taken by the department to prevent similar disclosures in the future. The department also apologized to the complainant.

2013-0314:  A complainant wrote a letter to their municipality requesting assistance with a neighbourhood noise issue. The complainants believed that the content of their letter had become known to a neighbour despite their request that the municipality keep the information confidential. The municipality publicly disclosed the personal name of the writer and subject of the letter on a council meeting agenda under “correspondence.” While The Municipal Act states that meetings of council are to be conducted in public, there are sensitive matters (such as by-law enforcement) when confidentiality is required. The municipality agreed to make changes to the way it handles correspondence in the future.

2014-0129: An applicant requested access to records from Manitoba Agriculture, Food and Rural Development about a complaint investigation made under The Animal Care Act. The applicant received a copy of a report, but the department denied access to information that would have revealed the identity of the informant. Our office found that the withheld information was personal information and disclosure of that information would have resulted in an unreasonable invasion of the third party’s privacy.

2014-0431: An applicant requested access to maps of mosquito fogging buffer zones within the City of Brandon. While the applicant clearly stated that he was not seeking names and addresses, the city explained that it would not be possible to generate maps of buffer zones without revealing the addresses of individuals who had applied for those buffer zones. The city also believed that disclosure of buffer zone addresses could invade a registrant’s privacy and possibly expose the registrants to harm, given the contentious nature of the program. Our office reviewed the electronic maps used by equipment operators and agreed that the buffer zones could easily be linked to property addresses.

2014-0400: An applicant requested access to three Winnipeg Police Service reports related to police visits to buildings that the applicant owns.  The WPS refused access on the basis that the applicant was not a party to the incidents that precipitated the reports. Our office agreed that disclosure of the information contained in the records would constitute an unreasonable invasion of a third party’s (the tenant’s) privacy.

2014-0407: A complainant alleged that the University of Manitoba inappropriately disclosed his personal information to a third party without his consent by providing his information to the U.S. service provider that handles the library’s web-based management system. The university believed that the disclosure was authorized under FIPPA, and that the disclosure was necessary for the complainant to have online access to the university’s libraries. Our office found that the disclosure was authorized, and that the disclosure was limited to only the information necessary to achieve the purpose for which it was disclosed; in this case, locating, borrowing and placing holds on library resources.

PHIA Privacy – Sometimes privacy breaches can be hard to contain or fix, particularly when there is more than one public body involved.  There are also cases where the right of one party to a fair hearing can trump the right of another party to privacy, particularly in hearing situations where a tribunal has to ensure fairness.

2014-0050, 2014-0052 and 2014-0254: An individual was involved in a motor vehicle accident that resulted in a claim to Manitoba Public Insurance for Personal Injury Protection Plan benefits. The individual believed that MPI had collected additional health information about her, without authorization. MPI assured the individual that the unauthorized information had been removed from her claim file. The individual later discovered that the information had been disclosed to the Automobile Injury Compensation Appeal Commission. We supported the complaint of unauthorized collection, use and disclosure of personal health information. However, the unauthorized information had already become part of an AICAC file thus further complicating the matter.

2014-0053: An individual complained that the Workers Compensation Board Appeal Commission disclosed records containing personal health information to the individual’s employer. PHIA permits disclosure of personal health information when authorized by another law. As The Workers Compensation Act provides an appeal panel the final authority to determine whether file information is relevant and should be provided to the employer, the disclosure in this case was allowed.

Solicitor-client privilege – Under FIPPA, a discretionary exception to disclosure includes information that is subject to solicitor-client privilege (the communications between a legal advisor and client). This is an evolving issue in Canadian access and privacy law, reflecting an apparent increase in the involvement of lawyers in decision making processes. The first of the three cases below contains a detailed discussion of the solicitor-client privilege in an access and privacy context.

2013-0285 and 2013-0286: An applicant requested a report created by an outside law firm for the City of Winnipeg about a review of a city land sale/swap. The applicant also asked for the contract with the law firm and any invoice generated as a result of the review. The city refused access on the basis that the information was subject to solicitor-client privilege, and they did not provide the records to the ombudsman for the purposes of review. The concept of solicitor-client privilege is discussed in detail in this report.

2014-0159: An applicant requested access to all email correspondence between a City of Winnipeg official and the city’s legal services. The city refused access on the basis that the information was subject to solicitor-client privilege. Our review of the information determined that it consisted of communications of a confidential nature between the city and its legal advisor. The city’s decision to exercise its discretion in refusing access was not unreasonable.

2014-0025: An applicant requested documents from a municipality related to a proposed water diversion, specifically documents between the municipality and its lawyer. The municipality refused access on the basis of solicitor-client privilege. Our office found that solicitor-client privilege applied to the withheld records.

Duty to assist – Under FIPPA, section 9 sets out a public body’s duty to assist an applicant. The two reports released today reflect very different levels of success in meeting that duty.  

2013-0350: Manitoba Public Insurance responded to an applicant’s request for his personal information related to his applications for a driver’s licence, providing three pages of records. While the applicant believed there should be more records, MPI’s search did not locate them. During the search process, MPI consulted with the applicant to discuss the request. We found that MPI had undertaken all reasonable efforts to assist the applicant and to search for the requested records.

2013-0245: An individual requested any records related to the quality of Gladue reports (a specific type of report related to sentencing of Aboriginal offenders) or the creation of a Gladue court in Manitoba. Manitoba Justice initially advised the applicant that it did not categorize documents by subject, which would necessitate a broad search of documents. The department further told the applicant that a fee would apply, but that it was impossible to determine the fee and undertake a search with current staff in place. The application for access was refused. Our office asked the department to fulfill its duty to assist the applicant by make every reasonable effort to search for records. Ultimately, some records were released, with severing.

FIPPA Access

2014-0269: An applicant sought access to board meeting minutes of the University of Winnipeg Community Renewal Corporation. The university advised that the records were not in the custody or control of the university, and refused access to the records. Our office determined that while the decision-making process of the corporation is influenced by the university, there is sufficient division between the two entities. The corporation’s records cannot be said to be under the control or in the custody of the university.

2014-0250 and 2014-0251: An applicant requested records related to two calls to the City of Brandon’s 911 Emergency Service. The city initially refused access, stating that the recordings were made with an obsolete recording system that was no longer in use. The city later determined that the CD containing the recordings in question had been lost or misplaced. While our office found that the decision to refuse access was in compliance with FIPPA, we also found that the city had not met its duty to assist the applicant.

PHIA Access – Both PHIA access cases relate to patient records and chargeable fees.

2014-0451: A Health Sciences Centre in-patient requested access to her chart. The hospital did not provide access within the 24-hour response time required by PHIA. After a complaint was made to our office, the hospital advised that it would make a copy of the chart available for a fee of $90.50, which was later revised to $25.

2014-0153: An individual requested access to her personal health information maintained in the electronic patient record at St. Boniface General Hospital. A $25 fee was assessed for processing the request, which the individual believed was unreasonable. As PHIA allows trustees of personal health information to “charge a reasonable fee”, and as the $25 fee was consistent with the WRHA’s fee schedule for patient information, our office determined that the fee was reasonable in the circumstances.

The FIPPA investigation reports can be found at:

https://www.ombudsman.mb.ca/documents_and_files/investigation-reports.html

The PHIA investigation reports can be found at:

https://www.ombudsman.mb.ca/documents_and_files/investigation-reports-1.html