Mar 2019 Charity & NFP Law Update
On February 20, 2019, the Information and Privacy Commissioner of Ontario (“IPC”) released PHIPA Decision 89 (the “Decision”) in response to a complaint under Ontario’s Personal Health Information Protection Act, 2004 (“PHIPA”). In this case, an individual had sought access to his late wife’s personal health records in his capacity as her estate trustee from the Mississauga Halton Local Health Integration Network (the “LHIN”). In response, the LHIN issued a decision granting him access to the personal health information, but stated that all non-health related information would be severed from the records in accordance with subsection 52(3) of PHIPA.
Following a complaint with the Office of the IPC, the LHIN agreed to conduct further searches for additional records and issued a revised decision to provide the individual with health care records in the possession of the wife’s care service providers. However, the individual complained further that additional records existed, namely a copy of his late wife’s last will that was allegedly provided to a person/nurse, and moved the complaint to the adjudication stage before the IPC.
In the Decision, the IPC considered whether the LHIN had conducted a reasonable search for the records. In doing so, the adjudicator applied the principles established in previous IPC decisions that had canvassed reasonable search orders issued under the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act and found them to be relevant to PHIPA. Having considered the LHIN’s evidence, the adjudicator stated that health information custodians are not required by PHIPA to “prove with absolute certainty that further records do not exist”, but rather only to provide “sufficient evidence to demonstrate that they have made a reasonable effort to identify and locate responsive records.” It further stated that “a reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request expends a reasonable effort to locate records that are reasonably related to the request.”
In this case, the adjudicator found that the individual’s request was for “the complete health record” of his wife, which was different from a request for “any records of his and his wife’s communications with the LHIN and its predecessor organization.” In this regard, the adjudicator found that the wife’s will was a peripheral record and was not directly related to health care provision, and that it therefore fell outside the scope of the request. The adjudicator also stated that the requester must provide a reasonable basis for concluding that additional records exist. The adjudicator considered the scope of the search conducted by the LHIN, as well as the nature of the employees who had carried it out, all of whom were experienced employees knowledgeable in the subject matter of the request. Based on the evidence given, the adjudicator held that the LHIN had made a reasonable effort to locate the records reasonably requested, and dismissed the complaint.
Section 52 of PHIPA provides individuals with a right of access over their own personal health information, and the Decision is a useful reminder to “health information custodians”, including certain charities and not-for-profits, such as hospitals, long-term care homes, home care providers and community care access centres, of the scope of their legal duty to provide access to such information in accordance with section 54. Such organizations need only provide sufficient evidence to show that they have made a reasonable effort to identify and locate responsive records in accordance with the factors laid out in the Decision. Further, in cases where requesters insist that they have not received a complete record, the onus is not on the health information custodian to prove that the records do not exist. Rather, the requester must provide a reasonable basis for concluding that additional records exist.