Sunday, March 26, 2017

Information and Privacy Commissioner says no health and safety concerns in releasing abortion information

Now this is super interesting. 

This document Comments of the Information and Privacy Commissioner of Ontario on Bill 84 [Bill 84, Medical Assistance in Dying Statute Law Amendment Act, 2017] details the IPC's opinion on excluding the names of medical facilities that provide medical assistance in dying, from freedom of information requests.

In this submission the IPC is saying this MAID exclusion from FIPPA goes too far and that the public should have a right to know in which facilities MAID is being carried out.

So by logical extension, one would conclude that the IPC would hold the view that we also have a right to know in which facilities abortions are being carried out: I think the same arguments apply.

In our Charter Challenge against the Ontario Government for hiding abortion information, the Information and Privacy Commissioner didn't take a position on whether abortion records should or should not be disclosed, but did mention how MAID records were being handled in Bill 84 as a possible way the government could deal with abortion.

In this paragraph the IPC actually states that there was no Health and Safety risk in our case (our case is not specifically identified but the description is obviously our case since it is the only case like it). Yet the health and safety angle was the Ontario Government's main argument:
"Broad exclusions from the Acts, such as the ones proposed in Bill 84, can prevent the public from accessing information that poses no health or safety risk. For example, in 2012, the Ministry denied a freedom of information request for province-wide statistics on the number of claims and amounts billed for abortion services. It did so on the basis of the abortion records exclusion in section 65(5.7) of the Freedom of Information and Protection of Privacy Act, 3 even though disclosure of this information posed no health or safety risk. In fact, the 2 Similar provisions exist in the Municipal Freedom of Information and Protection of Privacy Act. (emphasis added)
3 That decision was upheld by my office in Order PO-3222.
4 Ministry ultimately disclosed this information outside the scope of the statute after the requester commenced a court application."
I've already shot down that health and safety argument:

Now the IPC has just shot down the health and safety argument too. Let's hope Judge Labrosse agrees with us.

Finally as far as MAID goes:
"The Office of the Information and Privacy Commissioner of Ontario (IPC) wishes to focus on a single aspect of Bill 84. The bill proposes to amend the Freedom of Information and Protection of Privacy Act and its municipal counterpart, the Municipal Freedom of Information and Protection of Privacy Act (the Acts), to provide that these statutes do not apply to identifying information relating to medical assistance in dying. “Identifying information” is defined in Bill 84 to include information that identifies persons or facilities that provide services relating to medical assistance in dying and persons receiving such services. The IPC objects to the exclusion of information that identifies facilities providing services related to medical assistance in dying (facilities) from the application of the Acts. The rationale for this objection and the amendments proposed by the IPC are summarized in this submission  (emphasis added)
Excluding information that identifies facilities from the application of the Acts: 
• hinders transparency, accountability and meaningful public debate,
• is inconsistent with the transparency purpose of the Acts, and
• is not based on any evidence of harm.
Inconsistent with the Transparency Purpose of the Act
One of the key purposes of the Acts is to provide the public with a right of access to information under the custody or control of institutions, which include both public and private hospitals and municipally run long-term care homes, in accordance with the principles that information should be available to the public and any exemptions from the right of access must be limited and specific and clearly justified. As a general rule, the IPC closely scrutinizes any legislative changes that reduce the public’s right to know. (emphasis added)
No evidence has been provided, including evidence of harm, that would justify a broad exclusion from the right of access to information that identifies facilities." (emphasis added)
I'm happy to see the Information and Privacy Commissioner making his views public about what's happening with MAID. It's good to see him raising transparency issues, right to know issues, right of access to public and hospital institution information issues, etc.

I hazard to guess that when the Ontario government conducted their first assault on access to information rights regarding abortion, that the Information and Privacy Commissioner didn't even know what the government was doing. Nobody else knew, so how would the Information and Privacy Commissioner know? Was he consulted on the abortion exclusion clause? There is no indication that the commissioner knew anything about the clause's existence. Just like the rest of us.

This time with MAID, the Information and Privacy Commissioner was forewarned because of how the government went about with their secret assault on our rights last time. And this time, the Commissioner is on the offensive. Good for him.

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