Doctors Nova Scotia v. Nova Scotia (Health)

Doctors Nova Scotia v. Nova Scotia (Health) Court Supreme Court Date 2005-08-30 Citation 2005 NSSC 244 Docket S.H. No. 241413 Judge/Registrar/Adjudicator MacLellan, Douglas L. (Honourable Justice) Document Type Decision Relations Library Sheet - Doctors Nova Scotia v. Nova Scotia (Health) - 2005 NSSC 244 - 2005-08-30 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Doctors Nova Scotia v. Nova Scotia (Health), 2005 NSSC 244 Date: 20050830 Docket: S.H. No. 241413 Registry: Halifax IN THE MATTER OF: The Application of an Appeal pursuant to Section 41 of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, Between: Doctors Nova Scotia Appellant v. Nova Scotia Department of Health and Joanna Redden Respondent D E C I S I O N Judge: The Honourable Justice Douglas L. MacLellan Heard: August 8, 2005, in Halifax, Nova Scotia Counsel: Cynthia M. Scott, , for the Appellant, Doctors Nova Scotia Edward Gores, Esq., for the Respondent Graham Steele, Esq., for the Third Party By the Court: [1] This is appeal under the Freedom of Information and Protection of Privacy Act. The appellant, Doctors Nova Scotia, is a body representing all doctors in the Province of Nova Scotia. That body was formerly known as the Medical Society of Nova Scotia. It objects to a decision made by the Nova Scotia Department of Health to release to the applicant Joanna Redden a list containing the names of all doctors in Nova Scotia who receive funds from the Department of Health for services provided by them to citizens of Nova Scotia under the MSI plan for the Province. That list covers the years 2002-2003 and 2003-2004 and sets out the total amount paid to each doctor during these periods of time. [2] The payments made by the Department of Health were pursuant to an agreement between the Department and Doctors Nova Scotia which sets out the entitlement of each doctor to apply to be paid for specified services provided to patients who are residents of the Province. [3] The applicant, Joanna Redden is a staff person working for the New Democratic Party of Nova Scotia and made the application for this information on behalf of the party. [4] When the request for this information was received, the Department of Health agreed to the release of the information. However, because the information contained the names of the doctors receiving payments, Doctors Nova Scotia was advised of the Department’s intention to release the information. This notice procedure was pursuant to the provisions of the Act and at that time Doctors Nova Scotia requested a review of that decision by the review officer Darce Fardy. That procedure is also provided for under Section 32 of the Act. [5] The review officer investigated the matter and after hearing all parties provided a report in which he agreed with the decision of the Department of Health to release the requested information. Mr. Fardy found that the requested information was personal information about the individual doctors, but also found that since the funds paid to the doctors were under the terms of a contract between the Department of Health and Doctors Nova Scotia, he felt it was covered by Section 20(4)(f) of the Act. That section provides that this type of information should be released if “the disclosure reveals financial and other similar details of a contract to supply goods or services to a public body”. Mr. Fardy in his report indicated: In my opinion what doctors are paid under MSI billings, is for a service to the Department of Health in accordance with a contract agreed to by the parties. I do not accept the argument that because the service is provided to individual patients it, therefore, is not a service to the government. The doctors have entered into a contract with the government. Monies paid to them by government will provide medical service to residents of Nova Scotia. [6] Upon receipt of Mr. Fardy’s report, the appellant, herein, filed this appeal. [7] Section 42(1) of the Act provides: 42(1) On an appeal, the Supreme Court may (a) determine the matter de novo; and (b) examine any record in camera in order to determine on the merits whether the information in the record may be withheld pursuant to this Act. [8] Counsel have correctly identified the issue before me as being whether the information requested does divulge personal information of doctors in Nova Scotia who are paid under the MSI plan, and, if so, whether the disclosure should be ordered under the provisions of the Act. [9] Based on the submissions before me, the following provisions of the Act are relevant to this proceeding. Section 20 (1) The head of a public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s personal privacy. (2) In determining pursuant to subsection (1) or (3) whether a disclosure of personal information constitutes an unreasonable invasion of a third party’s personal privacy, the head of a public body shall consider all the relevant circumstances, including whether (a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Nova Scotia or a public body to public scrutiny; (b) the disclosure is likely to promote public health and safety or to promote the protection of the environment; (c) the personal information is relevant to a fair determination of the applicant’s rights; (d) the disclosure will assist in researching the claims, disputes or grievances of aboriginal people; (e) the third party will be exposed unfairly to financial or other harm; (f) the personal information has been supplied in confidence; (g) the personal information is likely to be inaccurate or unreliable; and (h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant (3) A disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy if . . . (f) the personal information describes the third party’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness; (4) A disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy if . . . (f) the disclosure reveals financial and other similar details of a contract to supply goods or services to a public body; [10] The appellant here argues that the contract between Doctors Nova Scotia and the Department of Health is not a contract to provide goods or services to a public body and therefore Section 20(4)(f) does not apply. It is submitted that the Court should consider the matter under Section 20(3) and conclude that disclosure should be refused because it would describe the doctors “finances and income” and therefore be an unreasonable invasion of the individual doctor’s privacy rights. [11] Counsel for the third party, Joanna Redden, submits that the review officer’s finding was correct and that Section 20(4)(f) governs the application and that the information must be disclosed. [12] Counsel for the Department of Health agrees with the decision of Mr. Fardy to release the information based on a finding that it is covered by Section 20(4)(f). [13] Counsel have referred me to a number of cases dealing with appeals under the Freedom of Information and Protection of Privacy Act. [14] In Cyril House and 144900 Canada Inc., S.H. 160555, April 20, 2000, Justice Moir of this Court dealt with an appeal from the decision of the Registrar of Motor Vehicles not to disclose to Mr. House, a private investigator, the name of the registered owner of a vehicle for which Mr. House had the license plate number. [15] Justice Moir reviewed the provisions of the Act and concluded that if the information sought was included in the items set out in Section 20(4)(a) to (i) it must be disclosed because it would not be an unreasonable invasion of the third party’s personal privacy. He concluded that if Section 20(4) did not apply and Section 20(3) did apply, the Court must then consider the issue as a balancing of the respective interests under Section 20(2) and (3). [16] Justice Moir’s interpretation is supported by the decision from our Court of Appeal in Dickie v. Nova Scotia (Department of Health) [1999] N.S.J. No. 116 (C.A.) where Cromwell, J.A. said: As noted earlier, the application of the Act in this case involves three steps. It is helpful to review them in more detail. The first step is to determine whether the requested information is personal information within the meaning of the Act. Counsel for the appellant accepts the burden of doing so. As noted above, personal information is defined in the Statute and so this step involves applying the statutory definition to the particular record under consideration. The second step is to determine whether disclosure of the personal information would constitute an unreasonable invasion of privacy. All relevant circumstances must be considered and, in particular, the matters set out in s. 20(2). At the second stage, the presumption under s. 20(3) may come into play. If the information falls into one of those categories, there should be no disclosure unless the presumption of unreasonable invasion set up by that sub-section is rebutted having regard to all the relevant circumstances including those set out in s. 20(2). On the other side of the coin, the list of situations which do not constitute unreasonable invasions may also come into play at the second step. As noted, s. 20(4) sets out a list of such circumstances. This subsection does not set up a rebuttable presumption but is instead a deeming provision. In other words, if it applies, the case is governed by its operation without regard to countervailing arguments under s. 20(2). The third step is reached if a s. 20(3) presumption operates and s. 20(4) does not apply. In those situations it must be determined if the presumption is rebutted. [17] In O’Connor v. Nova Scotia [2001] N.S.J. No. 360 (C.A.) Saunders, J.A. of the Court of Appeal commented on the purpose of the Freedom of Information and Protection of Privacy Act. He said: Thus, it seems clear to me that the Legislature has imposed a positive obligation upon public bodies to accommodate the public’s right of access and, subject to limited exception, to disclose all government information so that public participation in the workings of government will be informed, that government decision making will be fair, and that divergent views will be heard. The FOIPOP Act ought to be interpreted liberally so as to give clear expressions to the Legislature’s intention that such positive obligations would enure to the benefit of good government and its citizens. [18] Doctors Nova Scotia argues that Section 20(4)(f) does not apply to the requested information here. The pre-hearing brief submitted to me by counsel argues: The affected physicians are private individual professionals, providing services to private, individual patients in accordance with a statutory scheme, pursuant to which insured residents of the province are entitled to standard terms and conditions of payment for the cost of specific publicly insured medical services. See Health Services and Insurance Act, R.S. 1989, c. 197, as amended, s. 3(2). The relationships between the physician and patient in relation to which billing information is generated are private. It is submitted that neither the individual participants nor the relationships themselves attract a public character by virtue of the statutory scheme to provide public funding for related services. Physicians are providing an insured service. The fact that the service is insured through public funds does not render the physician an employee or agent of a public body (nor the services he or she provides to be services to that public body). By comparison, the physician would not be properly considered an agent or employee of a private insurer from whom he or she receives payment for other services insured outside the public scheme, nor that services provided and paid for through private insurance are services to the insurer. [19] Counsel further argues that the two provinces in Canada that permit release of this information Manitoba and British Columbia have not done so under their respective Freedom of Information and Protection of Privacy Act but through specific statutory provisions which mandated the release of the information. It is suggested that the passing of legislation permits informed discussion on the issue prior to a decision from the Legislative Assembly. [20] It is further submitted by counsel for Doctors Nova Scotia that the agreement between Doctors Nova Scotia and the Department of Health does not authorize the release of this information. [21] Doctors Nova Scotia also argues that the release of such information may hinder the possible recruitment of doctors to Nova Scotia and that since it has never been done in the past it would be unfair to do so now. [22] Counsel for the Department of Health argues that the review officer’s decision is correct and that Section 20(4)(f) applies. It follows that the information must therefore be released to comply with the Act. [23] The submission made by the Department to the review officer indicated as follows: The Contract for Services - Specific Submissions Physicians in the Province of Nova Scotia are, to the extent they provide services to Nova Scotia’s residents and are paid for those services directly by the Nova Scotia Government’s MSI program, contractors to the Province of Nova Scotia. The provisions of the Nova Scotia Health Services and Insurance Act which require arrangements for the provision of insured services is complied with, in part, by the Government’s agreement to provide funding when those insured services are provided by the physicians in the Province. This required agreement with the Physicians in the Province is handled in various ways including: 1. The Master Agreement which is negotiated between Doctors Nova Scotia (as the designated sole bargaining agent for any and all duly qualified medical practitioners in the Province under section 7(1) of the Medical Society Act for Nova Scotia). This agreement, currently for the April 1, 2004 to March 31, 2008, period) provides for the tariffs which fee-for service physicians may charge to the Province for the services they provide. This agreement is ratified by physicians in the Province pursuant to Doctors Nova Scotia mechanisms for achieving such ratification. 2. Contracts between individual physicians, Doctors Nova Scotia and the Province; and 3. Contracts between various groups/departments of physicians (primarily for specialist services), Doctors Nova Scotia and the Province. These contracts provide that all individual physicians providing services pursuant to the contract must all formally accept, in writing, the provisions of the contract which applies to them. It is noted that even for services which are governed by the Master Agreement, physicians submit their billings for the provision of insured services directly to the Province’s agent (Atlantic Blue Cross Care (ABCC), formerly Maritime Medical Care) and are paid directly by ABCC, as the Province’s agent. Physician billings are monitored by ABCC which manages the Medical Services Insurance Program for the Department of Health, and audited by ABCC to ensure accountability and compliance with billing requirements. While it is acknowledged that patients are the direct recipients of physician services, they are not a party to these agreements and have a separate clinical relationship with the physician. Essentially, the Province has entered into contracts with physicians to provide services to patients. It is noted that billing information is derived from personal information related to a patient but this level of information is not being requested nor is it being released. The billing information is only private insofar as personal information relating to the patient. This has no bearing on disclosing the name and gross amount that physicians have billed to the Province. Physician billing information does not include patient information. The relationship between the Department of Health and physicians is a contractual/financial one which relates directly to the various agreements that the Province has with physicians. The amounts which physicians bill to the Province for services performed pursuant to the terms of the Master Agreement and/or the amounts paid to physicians under contracts type 2 and 3 outlined above are not necessarily reflective of the total amounts which physicians earn. As is outlined in the Applicant’s submission, amounts billed to the Province are used for a varied of purposes, overhead, staff costs etc. In addition, physicians can and do bill for services which are not insured services in this Province, including but not necessarily restricted to services provided to workers under the Workers’ Compensation Act, medical legal opinions etc. Contract types 2 and 3 above specifically acknowledge that physicians may bill for those types of services outside the MSI scheme and the Master Agreement relates only to insured medical services. As payments made to physicians are part of the agreement for services they perform, how much is paid and to whom it is paid, if disclosed, would not be an unreasonable invasion of privacy. Disclosing names, in a professional capacity, and attached to remuneration, does not constitute an unreasonable invasion of personal privacy. It is of significance that in Nova Scotia the practice of the Provincial Government is to release salaries and names of civil servants. As well, names and salaries of teachers and professors are publicly available. With regard to teachers’ salaries, they are paid by School Boards, who are funded by the Department of Education. In addition, amounts paid to contractors to the Department of Health and other government departments are disclosed in the Supplement to the Public Accounts Report. In the Public Accounts Report Supplement for the Fiscal Year ending March 31, 2003, (http://www.gov.ns.ca/finance/budget04/supp200.pdf) it is noted that the names of contractors including some physicians (see pages 65 to 77 for specific Department of Health information), and the amounts paid to such contractors is regularly disclosed. It is submitted that it would constitute inconsistent and unfair treatment to identify specific individuals who receive funds from Government while not identifying others (physicians) who are in substantially the same position. Conclusion: In keeping with the principle of the Freedom of Information and Protection of Privacy Act relating to accountability, disclosure of names and salaries of physicians would mean the Department is being accountable for large sums of money paid out of the public purse. To do less would be to create an unfair practice relating to physicians. In summation, the Department strongly believes that in order to be accountable and transparent under the Freedom of Information and Protection of Privacy Act it is obliged to grant the applicant’s request, in full. [24] The third party in this appeal Joanna Redden was the original applicant requesting the information in question. Counsel summarized her argument on the 20(4)(f) issue and said: DNS says that s. 20(4)(f) does not apply because doctors are not supplying goods or services “to” a public body. This is too narrow a reading of s. 20(4)(f). It would limit s. 20(4)(f) solely to goods and services consumed by a public body itself, like paperclips or office furniture. But public bodies, by their very nature, pay for goods and services that are consumed by and for the benefit of the public, such as roads, schools and hospitals. The interpretation of s. 20(4)(f) proposed by DNS is not in keeping with the principles of interpretation laid down by the Court of Appeal in O’Connor: liberal interpretation in favour of disclosure. ISSUE: [25] Does Section 20(4)(f) apply to the requested information? [26] The agreement between Doctors Nova Scotia and the Department of Health which has been provided to me does not in any way restrict the release of the information sought by Ms. Redden. The funds paid by the Department of Health to individual doctors under the contract are very large being something in the vicinity of over 450 million dollars per year. The contract between the Department of Health and Doctors Nova Scotia is a general contract permitting doctors who are members of Doctors Nova Scotia to bill the Province for a certain specified services authorized under the contract. Each doctor bills individually and is paid individually for each service provided to a resident of Nova Scotia. [27] I reject the suggestion that the contract here is between the doctor and the patient who receives the service. I interpret the contract involved here to clearly set out the rights of doctors to bill the Province provided they provide the service to a resident of Nova Scotia who through their taxes provide the funds to pay the doctors. [28] When the Nova Scotia Legislature passed the Freedom of Information and Protection of Privacy Act and mandated that the disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy if the disclosure reveals financial details of a contract to supply goods or services to a public body, it was well aware that doctors are paid for services provided to a resident and made no attempt to limit that disclosure. [29] Clearly, the contract here between Doctors Nova Scotia and the Department of Health is a financial contract. It provides for the fees payable for a certain procedure carried out by doctors. The service provided by the doctors are not for the Department of Health but for residents of the Province. As Doctors Nova Scotia speaks for the doctors so does the Department of Health speak for the residents of Nova Scotia. [30] I conclude that the contract between Doctors Nova Scotia and the Department of Health is a contract for the supply of services and that the fees paid under the contract are financial details of the contract and therefore come within Section 20(4)(f) of the Act. [31] I reject the suggestion that because the information was not released in the past that somehow that should be a significant factor at this point. Mr. Gores, counsel for the department, addressed that issue and properly pointed out that times are changing and that the Province of Nova Scotia clearly accepts its obligations to comply with the legislation passed by the Legislative Assembly. [32] Counsel for Doctors Nova Scotia argues that in other provinces when release of similar type information is mandated there was an opportunity for a debate on its merits and the same procedure should be followed in Nova Scotia before this type of information is released. [33] I reject that suggestion in light of the opportunity for debate at the time the Freedom of Information and Protection of Privacy Act was passed. Clearly, Section 20(4)(f) covers many contracts entered into by the Government of Nova Scotia. [34] I interpret this section to be very broad in scope and basically indicating that if a person has a financial contract with a government body to provide goods or services you should expect that it is going to become public knowledge through Freedom of Information. Doctors Nova Scotia are taken to know the law and therefore are taken to be aware when they bill the Department of Health for services provided to patients, that the financial terms of the billing will become public knowledge. [35] There is no suggestion here that anything other than the financial details are released. [36] It is also clear that only the total billings of each individual doctor for each fiscal year is provided. In no way is information released about the individual billings made by the doctor to the Department. [37] Doctors Nova Scotia are concerned about the possible misinterpretation of this information by members of the public. It is suggested that the public would not understand that doctors have costs associated with their billings and that the monies received are gross figures not net of expenses. [38] I do not interpret Section 20(4)(f) as dealing with that issue, however, I also do not believe that any confusion arising from the total billing figure would justify in any way the withholding of information if it was permitted under the Act. [39] Doctors Ernest in his affidavit presented on this application submitted: THAT I am not an employee or agent of the Province and am not entitled to and do not receive salary or other benefits of employment (such as pension, sick leave, insurance or vacation) from the Province or any other public body. As a professional, payment for my services, received from or on behalf of my patients (whether through MSI, other insurance or otherwise), are applied against expenses to operate my practice, including overhead costs such as my office, employees, utilities, supplies, etc. I am concerned by potential for false impressions arising from a release of the gross amount of my MSI billings, which I consider to have significant potential to be misunderstood or misinterpreted by various people in my community with whom I interact on a day to day basis. [40] I would note that the agreement between Doctors Nova Scotia and the Department of Health provides by paragraph 6.3 that an annual payment of 4.5 million dollars is made by the Department of Health to Doctors Nova Scotia to provide its members with benefits which may include extended health care insurance, life insurance and continuing medical educational allowances. [41] This section would appear to be in fact benefits received by doctors in Nova Scotia in addition to the monies received from the individual billings. [42] In light of my decision to find that the information requested is covered by Section 20(4)(f) of the Act it is not necessary for me to deal with whether the Third Party here has shown that the presumption of an unreasonable invasion of privacy has been rebutted in light of the fact that all parties agree the information involved does contain personal information. [43] I would therefore dismiss the appeal of Doctors Nova Scotia and order the release of the requested information. [44] The parties have agreed that the release of this information be delayed for a period of 30 days to allow Doctors Nova Scotia to appeal this decision if it is their wish. J.