Citation: Ontario (Health and Long-Term Care) (Re), 2016 CanLII 32641 (ON IPC), <http://canlii.ca/t/grx9q>, retrieved on 2016-06-11

[1]         The appellant, a journalist, submitted a request to the Ministry of Health and Long-Term Care (the ministry) under the Freedom of Information and Protection of Privacy Act (the Act) for access to:

 

… records on the top 100 [Ontario Health Insurance Plan (OHIP)] billers for each of the five most recent years such data is available.

 

I would like a breakdown of the dollar amount billed, medical specialty and names of billing doctors.

 

[2]         The ministry generated a 13-page record containing the requested information.  The record contains five separate tables, each entitled, “Top 100 Ontario Fee-For-Service [FFS] Physician Payments by Specialty based on Professional Billings.” The record contains a separate table for each of the years 2008, 2009, 2010, 2011 and 2012.  Each table consists of columns setting out the Physician Rank (1-100), Physician First Name, Physician Last Name, Physician Specialty, and Professional Fee for Service (FFS) Payments.  The FFS column shows only the total annual payments by OHIP to each of the physicians.

 

[3]         From this description of the record, it is evident that while the request sought access to the dollar amounts “billed” by the top 100 billers for each of the five years from 2008 through 2012, the record generated by the ministry in response to the request shows the total “fee-for-service payments” to each of these physicians.  Accordingly, although the request and many of the representations provided by the parties to this appeal refer to “billing” information, the record actually reflects payments.  As a consequence, the information in the record that corresponds to what is frequently described in this order as “billing” information is, in fact, payment information.  Also, as explored later in this order, the amounts billed by a physician are not necessarily the same as the amounts paid.

 

[4]         The ministry issued a decision granting partial access to the requested information, and relied on the exemption in section 21(1) (personal privacy) of the Act to deny access to the information it withheld.  Full access was granted to the columns listing the Physician Rank and FFS Payments.  Partial access was granted to the column listing the Physician Specialty, with some of the identified specialties redacted from the record.  Access to the first and last names of the physicians was denied in full.

[126]   The affected parties and interested organizations who rely on this exemption (or rely on it in the alternative) submit that disclosure could reasonably be expected to lead to the harms identified in sections 17(1)(a) and/or (c) by:

 

  •       inviting competition by demonstrating success in regional markets;
  •    creating leverage for competitors to adopt a fairness argument that a physician does not need any more business;
  •    creating undue gain or loss as a result of competitors gaining an advantage;
  •    damaging the physician’s reputation by identification as a high biller, and leading patients or referring doctors to transfer their business elsewhere;
  •    resulting in frivolous complaints to the College of Physicians and Surgeons of Ontario (CPSO); and
  •    damaging the profession’s ongoing fee negotiations with the ministry by creating a false impression of physicians’ incomes without regard to the fact that they pay overhead and other expenses.

 

[127]   These submissions do not rise beyond the level of mere allegation or speculation.  For example, the argument that the public will see the payments as the physicians’ actual personal income is belied by the absolute and marked insistence by so many of the affected parties that this is false.  It is difficult to imagine that physicians, either individually or through their professional organizations, would sit by and let that impression go unchallenged.  And the appellant herself acknowledges that these payments do not reflect physicians’ actual personal income.

 

[128]   With regard to the argument about patients or referring doctors going elsewhere because someone is a high biller, it is, in my view, equally likely that this would be seen as a marker of success and competence, and could assist the physician to retain clients and referrals, or even increase them.

 

[129]   Nor is it self-evident that complaints to the CPSO could reasonably be expected to result from disclosure.  Higher billings, without more, provide no proof of misconduct.

 

[130]   Similarly, other arguments that various affected parties have asked to remain confidential are not supported by evidence, and are, rather, stated as though their validity is self-evident, which it is not.

 

[131]   I find that these arguments do not meet the standard of proof set out in Ontario (Community Safety and Correctional Services), cited above, that the evidence provided must be well beyond the merely possible or speculative.

 

[132]   In addition, counsel for one group of physicians refers to the harms it had advanced on behalf of its clients as part of its argument that the personal privacy exemption at section 21(1) applies.  I found, above, that this exemption did not apply on other grounds, namely that the record does not contain personal information.  These arguments, as well as others provided by counsel for this group of doctors, are as follows:

 

  •       the physicians may suffer pecuniary harms in future contract negotiations with hospitals, staff and employees, with respect to budget allocation and operating room time, because if hospitals are aware that someone is a high OHIP biller, operating room time and funding will be reduced;
  •       similarly, negotiations with suppliers and employees will be negatively impacted if physicians’ gross income is revealed;
  •       donations to hospital foundations may be decreased;
  •       disclosure is likely to adversely affect physicians, their families and their children, especially in smaller cities; and
  •       patients may feel uncomfortable or ask for loans. 

    The appellant

     

    [168]   The appellant submits:

     

    148024_600

     

    I believe there should be as much public disclosure as possible surrounding this considerable outlay of taxpayer dollars.

     

    We live in a time when there is a growing expectation of transparency from public institutions, especially in relation to the allocation of taxpayer dollars.

     

    Transparency leads to more accountably, which, in turn, leads to better use of taxpayer dollars.

     

    . . .

     

    Around the world, compensation transparency is increasingly commonplace, especially when it involves public funds. In Canada, both Manitoba and British Columbia already release physician-identified billing data. And Ontario releases the identities and salaries of public servants who make more than $100,000 annually.

     

    . . .

    ORDER:

     

    1.    I find that the undisclosed portions of the record are not exempt under section 21(1) or 17(1) of the Act.

     

    1.    I find in the alternative that if either of these exemptions applies, the public interest override in section 23 of the Act applies.
    1.    I order the ministry to disclose the record, in its entirety, to the appellant not earlier than July 4, 2016 and not later than July 8, 2016.

via CanLII – 2016 CanLII 32641 (ON IPC)

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