Still Digging for Dirt…

Keep up the great work!  Can’t wait for the story!


OVERVIEW:

[1]         A newspaper reporter made 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 “an up-to-date breakdown of the amount of money each pharmaceutical company has given the provincial government in rebates as part of agreements to have their products listed on the Ontario Drug Benefit Formulary.”

[2]         In a July 22, 2014 letter to the requester, the ministry described the request as having been clarified as a request for the following information:

  1. An aggregate annual total payment for all drug manufacturers (by calendar year up to and [including] calendar 2013).
  1. A 2009 list of drug manufacturers that had an agreement in place with the ministry as well as a current (early 2014) list.

[3]         The ministry identified three responsive records. Record 1 is a listing of aggregate annual total payments from January 1, 2007 to December 31, 2013. Record 2 is a list of drug manufacturers with product listing agreements with the ministry as of early 2014. Record 3 is a 2009 list of drug manufacturers with product listing agreements with the ministry.

[4]         Prior to making its decision on access, the ministry notified 120 drug companies whose interests may be affected by disclosure of the records, in accordance with section 28 of the Act. After considering the submissions received in response to these notices, the ministry advised all the parties of its decision to disclose the records, in their entirety, to the requester.

[5]         One of the notified parties appealed the ministry’s decision to disclose Record 2. As a result, it is the appellant in this appeal. In its submissions to the ministry, the appellant took the position that the mandatory exemptions at sections 17(1)(a) and (c) (third party information) of the Act apply to the information about it in the records.

[6]         During the mediation stage of the appeal process, the appellant confirmed it does not take issue with the disclosure of Records 1 and 3 to the requester. As a result, these records are not at issue in this appeal. The sole record at issue is the one described by the ministry as “a list of drug manufacturers with product listing agreements with the ministry as of early 2014.” The ministry also confirmed that none of the other notified parties has objected to disclosure of this record to the requester.

[7]         As no further mediation was possible, the appeal was transferred to the adjudication stage of the appeal process for an inquiry under the Act. I began my inquiry by seeking the representations of the appellant, as it is the only party objecting to disclosure of the sole record at issue.

[8]         In its initial representations to me, the appellant did not address the application of section 17 to the record. Instead, it took the position that the inclusion of its name in the record is in error, as the appellant is a distributor, and not a manufacturer, of a product listed on the Ontario Drug Benefit Formulary. The appellant thus takes the position that its name is not responsive to the request as clarified by the ministry and set out in the ministry’s July 22, 2014 letter.

[9]         In light of this, I sought the ministry’s position on the new issue raised by the appellant — namely, the responsiveness of the information at issue (the name of the corporate appellant) in the record. I provided the ministry with a copy of the appellant’s representations and asked it to specify whether it agrees with the appellant’s position on the scope of the request giving rise to the appeal, and, if it does not agree, to provide representations on the responsiveness of the information at issue. Although I withheld the appellant’s representations from the requester for reasons of confidentiality,[1] I provided the requester with a summary of the appellant’s position, and also sought his views on this issue.

[10]      Both the ministry and the requester objected to the appellant’s characterization of the scope of the request. The ministry explained that it unilaterally proposed the language of the clarification (to “list of drug manufacturers…”), but submits that the clarified request ought to be read in conjunction with the original request in order to give effect to the requester’s intention about the scope of his request. The ministry also clarified that despite the title given to it, the record contains the names of both drug manufacturers and drug distributors, including drug distributors other than the appellant.

[11]      The requester confirmed he agrees with the ministry’s representations on this issue.

[12]      I determined that it was unnecessary to seek further representations from the parties on the issue of responsiveness. However, as section 17 is a mandatory exemption, I invited the appellant to make representations on the application of section 17 as an alternative to its main claim of non-responsiveness, which it did. The thrust of the appellant’s section 17 argument is that disclosure of its name in the record will lead to the disclosure, by inference, of the name of a drug product. The appellant claims that in the circumstances of this appeal, the name of the drug product is “product-specific information” of the sort that is protected by section 17(1)(a) and/or (b).

[13]      I provided the ministry and the requester with the opportunity to make responding representations on this issue. Only the requester provided brief submissions in response.

[14]      In this order, I find that the information at issue — the appellant’s name on a list of drug companies with product listing agreements with the ministry at a particular point in time — is responsive to the request, notwithstanding the language used by the ministry in its clarification of the request. I also find that neither section 17(1)(a) nor (b) applies to this information. I uphold the ministry’s decision to disclose the record, including the name of the appellant, in full. I dismiss the appeal.

INFORMATION AT ISSUE:

[15]      At issue is the inclusion of the appellant’s name in a three-page record that the ministry originally described, in its decision letter, as a list of “drug manufacturers that had [a product listing] agreement in place with the ministry” as of early 2014.

[16]      The ministry has since clarified that the list includes the names of both drug manufacturers and drug distributors.

ISSUES:

  1. What is the scope of the request? Is the information at issue responsive to the request?
  2. If the information at issue is responsive to the request, does the mandatory exemption at section 17(1)(a) and/or 17(1)(b) apply to it?

[24]      Nonetheless, the ministry submits that the original request demonstrates that the object and intention of the requester in making the original request was to obtain information about all pharmaceutical companies (drug manufacturers and drug distributors) that had agreements with the ministry within the defined time period, including the names of those companies, and not merely information about a subcategory of those companies. The ministry observes that the content of the record it produced in response to this part of the request demonstrates that it did not interpret the request to be limited to drug manufacturers, despite its use of that term in its clarification and in its original description of the record. The ministry asserts that, in fact, the responsive record contains the names of both drug manufacturers and drug distributors — including drug distributors other than the appellant. In these circumstances, the ministry argues, the clarified request must be read together with the original request to accurately define the scope of the information sought by the requester. It therefore submits that the names of all drug companies, including the appellant’s, reasonably relate to the request read as a whole, and are therefore responsive to the request.

 Source: Ontario (Health and Long-Term Care) (Re), 2016 CanLII 50408 (ON IPC), par. 24, <http://canlii.ca/t/gstsq#par24>, retrieved on 2016-08-14.

[72]      I conclude that the appellant has not met parts two or three of the test for application of sections 17(1)(a) and (b).

[73]      Lastly, the appellant argues that if section 17(1) is found not to apply to the information at issue, it should be withheld under other grounds. In particular, it states that, due to the appellant’s “position of vulnerability” of having only one product on the Formulary during the relevant period, “the Ministry was under a duty, at law and in equity,” not to disclose information that could reveal the true purpose of its payments to the ministry under the product listing agreement.

[74]      This argument has no bearing on my determination of issues under the Act.

[75]      I dismiss the appellant’s appeal.

ORDER:

  1. I uphold the ministry’s decision to disclose the information at issue to the requester.

As it appears the ministry has not yet disclosed any information in the record to the requester, I order the ministry to disclose the record, in full, by August 29, 2016 but not before August 24, 2016.

  1. In order to verify compliance with order provision 1, I reserve the right to require the ministry to provide me with a copy of the record disclosed to the requester.

Citation: Ontario (Health and Long-Term Care) (Re), 2016 CanLII 50408 (ON IPC), <http://canlii.ca/t/gstsq>, retrieved on 2016-08-14
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