On January 1, 2012, the Freedom of Information and Protection of Privacy Act (FIPPA) extended to Ontario hospitals. FIPPA provides a right of access to any record that is in the custody or under the control of public sector institutions, subject to limited exclusions and exemptions. FIPPA has two purposes:
(1) Protection of privacy (“Privacy Regime”) and (2) freedom of information (“FOI Regime”).
The Privacy Regime is very similar to the privacy laws that already apply to hospitals, such as the Personal Health Information Protection Act (PHIPA). It is important to note that FIPPA does not apply to personal health information (as defined by PHIPA). However, the FOI Regime represents a more significant impact to hospitals and imposes obligations including:
- to provide the public with access to records (or portions of records) not specifically excluded or exempted by law;
- to adhere to the administrative processes as to how to handle a request for access (including a timeline to respond to requests); and
- oversight of the FOI process by the Information and Privacy Commissioner of Ontario (IPC), who can hear and resolve appeals from affected parties.
In addition to hospitals, FIPPA also applies to Ontario government ministries, universities and colleges, and other bodies listed in the regulations to the Act, including the Local Health Integration Networks (LHINs). When hospitals were added as institutions under FIPPA, additional amendments were made to exclude certain categories of records found in a hospital setting. On January 1, 2012, two new exclusions were added to section 65 of FIPPA, which will impact physician records:
- Records collected, prepared, maintained or used by or on behalf of the hospital in relation to meetings, consultations, discussions or communications about applications for professional staff appointments, privileges, and anything that forms part of the personnel file (the “Credentialing Exclusion”); and
- Administrative records of a member of a health professional listed in Schedule 1 to the Regulated Health Professions Act, 1991 that relate to their personal practice (the “Personal Practice Exclusion”).
With both of these exclusions being new, there is no guidance from the IPC, or the courts, on the scope or interpretation of these exclusions. The OHA convened a working group of hospital and physician leaders, and with the assistance of the Ontario Medical Association (OMA), developed a guidance document to provide advice on the potential scope of the Credentialing and Personal Practice Exclusions. To access OHA Guidance Document #11: FIPPA and Credentialing and Personal Practice Records, please click here.
On December 1, 2011, the guidance document was launched through a videoconference and webcast entitled, FIPPA and Implications for Credentialing and Health Care Practice Records. To view the archive of the session, please visit the OHA FOI Webpage at www.oha.com/foi under “Educational Supports” or click here.
For any questions, please contact Karen Sequeira, Project Manager, Freedom of Information Implementation at ksequeira@oha.com or 416-205-1328.