September 26, 2012

FOI requests and the privacy of disciplined registrants

Administrative Law
Freedom of Information
Inquiry and Investigations
Professional Regulation

Under BC’s Freedom of Information and Protection of Privacy Act (FIPPA), the public’s right to access records of public bodies (which includes self-governing professional bodies) has exceptions that include unreasonable invasions of personal privacy. How do those exceptions apply to consensual agreements for discipline, or consent orders under s.37.1 of the Health Professions Act?

The privacy of disciplined registrants arose in a recent decision of BC’s Information and Privacy Commissioner that related to a professional who had consented to discipline pursuant to an “Agreement” under the Medical Practitioners Act. The professional’s regulatory college issued a public notice setting out his name, the actions taken, and its reasons. The profession’s regulatory body later transitioned to being governed by the Health Professions Act. A professor researching sexual behaviour of physicians then made a FIPPA request for “decisions” of the College concerning 92 professionals. With respect to the particular discipline matter, the College provided a copy of the Agreement, but severed all information that could identify the complainant or the physician, including the physician’s name.

Under Order F12-10, an Adjudicator decided that while disclosure of the entire Agreement was not required under FIPPA’s “public interest” catch-all disclosure provision (s.25) – the need for a public debate on the effectiveness of public regulation did not disclose a “grave need to produce the records on an urgent basis” – the Adjudicator went on to find that the College had to disclose the professional’s name:

1. Information about the professional in both his professional and personal capacities, including his medical, educational and employment history, constituted personal information. [22]

2. Since the Medical Practitioners Act and the Health Professions Act required or permitted disclosure of the professional’s name, disclosure of his name categorically could not be an unreasonable invasion of privacy: s.22(4)(c) of FIPPA. [24-26]

3. As for other personal information of the complainant and the registrant, disclosure of certain categories of information (i.e., categories listed in s. 22(3)) are presumed under FIPPA to involve unreasonable invasions of personal privacy (although this presumption is open to dispute). In this case, the presumption caught the medical information of the complainant, [27] information compiled and identifiable as part of an investigation which in this case included the Agreement and its schedules [28], and the registrant’s education and employment history, his information about his practice and his absence from his practice. [29]

4. In deciding if the requesting party had shown that disclosure of any of this information was not actually an unreasonable invasion of privacy, the Adjudicator weighed various factors and decided that

(a) disclosure of the complainant’s medical history would be an unreasonable invasion of her privacy (except for the already publicly disclosed fact that the physician hugged and kissed the complainant); and

(b) disclosure of the registrant’s medical, employment and educational history (including reference to a non-disciplinary matter that could impact the professional’s reputation if disclosed) would be an unreasonable invasion of his privacy (except for information concerning the fact that he hugged and kissed the complainant), as disclosure of such information would not, given the information already contained in the original public notice, add to the public’s ability to assess if the punishment fit the offence.

Ultimately this decision illustrates a FIPPA request going beyond a college’s public summary, to encompass the text of the underlying consent agreement, subject to the regulatory body severing specific information that, if disclosed, would give rise to unreasonable invasions of privacy of complainants or registrants.

Order F12-10; British Columbia (College of Physicians and Surgeons), OPIC File No. F11-45559, [2012] B.C.I.P.C.D. No. 14 [QL]