What To Expect from a FIPPA or PHIA Investigation by The Manitoba Ombudsman
This information provides an overview of what public bodies, health information trustees and complainants can expect during an investigation under The Freedom of Information and Protection of Privacy Act (FIPPA) and The Personal Health Information Act (PHIA)
1. What happens after a complaint is received at the office of the Manitoba Ombudsman?
A complaint and any accompanying documents are reviewed to ensure that it is a matter that can be investigated by our office. Our office may contact the complainant if clarification is required. This may require a verbal discussion on the phone. If it is determined that we can investigate the matter, the complaint is assigned to an Investigator who reviews the complaint. The Investigator then contacts the complainant and/or sends a letter advising that he/she will make inquiries and investigate the matter.
The Investigator will provide the public body/trustee with information about the complaint as well as provide the complainant’s name and the reason(s) for the complaint. This is done to allow the public body/trustee to adequately respond to our office about the complaint during an investigation.
2. Does the complainant have the opportunity to provide information about a complaint during the investigation?
Both FIPPA and PHIA require that the Ombudsman give the complainant and the public body/trustee an opportunity to make representations to the Ombudsman during the investigation. This means that both parties can submit information during the investigation in order to explain and/or clarify their position in the matter. It is important that we can be in touch with individuals as needed and that they participate in the process.
3. Can the complainant review information provided by the public body/trustee about the complaint?
No, FIPPA and PHIA state that no one is entitled to have access to or comment on representations made to our office by another person.
4. Can communication between the complainant and the public body/trustee take place during the investigation?
Communication between both parties can occur during an investigation, and in some circumstances a resolution pertaining to the matter can be achieved.
5. What happens during an investigation?
We review information relevant to the complaint that has been provided to us by the complainant and the public body/trustee. We may speak to, or meet with, any employee of the public body/trustee who may be able to provide any information we require. In an investigation, we determine whether the decision or action of a public body/trustee was in compliance with the requirements set out in provisions of FIPPA of PHIA (e.g. whether a refusal of access was authorized under provisions of the Act or whether a disclosure was permitted under the Act).
6. What sort of outcome can be expected from an investigation?
If we support a complaint, we take steps to ensure that the Act is followed. Upon completing an investigation, a report containing our findings is prepared and provided to both the complainant and the public body/trustee. The report may also contain recommendations the Ombudsman considers appropriate respecting the complaint.
7. How long does an investigation take?
FIPPA requires that an investigation be completed and a report made within 90 days after a complaint is made. PHIA requires that an investigation under this Act be completed and a report made within 45 days after the complaint is made if it is about access, and within 90 days if it is about privacy. If an investigation will not be completed within these time periods, we provide a letter to the complainant and the public body/trustee notifying that the period is being extended. Our letter will indicate an anticipated date for providing the report.
8. Can the public body’s/trustee’s decision be appealed?
If the Ombudsman finds that a complaint relating to the refusal of access to information is unjustified, the report will include a notice to the complainant of the right to appeal the decision to the Court of Queen’s Bench and of the time limit for an appeal.
9. What happens if the Ombudsman makes recommendations?
If the report contains recommendations, both FIPPA and PHIA state that the public body/trustee must, within a certain period of time, send our office a written response indicating whether it accepts the recommendations and, if so, what will be done to implement them. If the public body/trustee refuses to accept the recommendations, the written response to our office must indicate the reasons for the refusal.
10. What happens if the public body/trustee doesn’t follow the recommendations?
The Ombudsman may request that the Information and Privacy Adjudicator conduct a review into the matter if the recommendations are not followed. A request for a review can only be made by the Ombudsman, and not by the public body/trustee or complainant. Upon completing a review, the Adjudicator makes an order, a copy of which is provided to the public body/trustee, the complainant and the Ombudsman.
Steps in a FIPPA and PHIA Investigation
- Review of complaint
- Obtain information and representations about complaint from public body/trustee and complainant
- Analysis of decision or action by public body/ trustee in relation to FIPPA/PHIA
- Determine whether complaint is supported
- If not supported, provide a report with findings to the complainant and public body/trustee
- If complaint is about a refusal of access, inform complainant of right of appeal to Court of King’s Bench
- If supported, attempt to resolve the case informally
- If resolved, provide a report with findings to the complainant and public body/trustee
- If not resolved, provide a report with recommendations to the complainant and public body/trustee
- If public body/trustee follows recommendations, Ombudsman notifies complainant and case is closed
- If public body/trustee does not follow recommendations, Ombudsman may request a review by Information and Privacy Adjudicator
- Adjudicator makes an order, which is provided to the complainant, public body/ trustee and the Ombudsman