Osler Hoskin & Harcourt LLP unexpectedly landed itself in the news recently after it posted a note on its web site saying hospitals will want to cleanse their files in advance of new freedom-of-information rules.
The firm raised the spectre of the damage caused by scandals such as the eHealth Ontario mess in suggesting hospitals purge their records before the Freedom of Information and Protection of Privacy Act starts applying to them on Jan. 1, 2012.
The posting prompted an outcry, eventually drawing Premier Dalton McGuinty to respond to the issue with comments that hospitals should respect both the letter and the spirit of the law.
“There’s the letter of the law and there’s the spirit, and I would ask the people who work in our hospitals to respect both,” The Canadian Press reported McGuinty as saying.
“There’s a legitimate expectation on the part of Ontarians that we get a better understanding of what is happening inside our hospitals. That does not justify, it does not authorize, it does not give licence to people in our hospitals to start destroying documents.”
As McGuinty hinted, hospitals may have the legal right to do what Oslers suggested (although it has since removed the reference to cleansing), but doing so would certainly run counter to their mandate to the public. Since then, hospitals have been tripping over themselves to get the message out that they won’t
be doing what Oslers originally said.
But the firm’s apparent logic in suggesting a purge reveals a broader problem. It seems to believe public agencies such as hospitals have the right to hide information given that their reputation “can be harmed through a [freedom-of-information] request.”
Using that logic, if eHealth Ontario had only found some way to purge its documents, the public wouldn’t have learned of spending problems there and everything would be fine.
That’s unfortunate because, while there’s an unfortunate tendency to exaggerate the scale of some of the scandals that come to light, society is generally better off by knowing what governments and public agencies are doing.
At the same time, contrary to what Oslers seems to think, the information doesn’t belong to governments or hospitals. It belongs to the public subject to restrictions related to individuals’ personal information as well as a few other criteria.
In the meantime, McGuinty, contrary to the spirit of his government’s original move to apply freedom-of-information rules to hospitals in the first place, is now trying to scale it back with provisions that would allow them to refuse to release records related to quality of care.
The change is currently before the legislature. In light of his comments about Ontarians’ “legitimate expectation,” McGuinty should reconsider the amendment.
— Glenn Kauth
