Privacy and Accommodation of Disability in Ontario ‘Simply not a Matter of Statute In lieu of a paper I’ve put together a collection of materials (indexed below) that help make the point that the privacy right that restricts an employer's use of employee medical information is derived from implied contractual rights ~ not statute. This point is not well understood, which can invite unnecessary and needlessly complicated disputes. Like most implied contractual rights, the rule that governs is general rather than specific and meant to foster reasonable workplace norms. Employers can collect what information they reasonably need and must use it for the purpose it was collected. The ultimate accountability for the information rests with the employer the “custodian” ~ not with the advisors and other individuals the employer hires to handle information and provide it with advice. Dan Michaluk, Hicks Morley May 13, 2016 Section 49 of PHIPA is the only PHIPA provision that applies 1. Personal Health Information Protection Act, s. 49 2. Medical Information Management for Employers, All About Information (2007) 3. Adjudication Summary HC-050014.1 a Summary of Morris (Re), 2015 CanLII 54751 5. Summary of Revera Long Term Care Inc, 2014 CanLII 58768 6. Excerpt from Sault Area Hospital, 2015 CanLIl 55643 FIPPA and MFIPPA do give privacy rights to public sector employees 7. Freedom of Information and Protection of Privacy Act, section 65(6)8 IPC/Ontario, Annual Report 2004 Section 63(2) of the OHSA is relevant but limited 9. Occupational Health And Safety Act, s. 63(2) The exception - federally-regulated employees 10. Personal Information Protection and Electronic Documents Act, ss. 5(3) and 7.3Personal Health Information Protection Act, 2004, 8.0. 2004, c. 3, Sched. A 49. (1) Except as permitted or required by law and subject to the exceptions and additional requirements, if any, that are prescribed, a person who is not a health information custodian and to whom a health information custodian discloses personal health information, shall not use or disclose the information for any purpose other than, {a) the purpose for which the custodian was authorized to disclose the information under this Act; or (b) the purpose of carrying out a statutory or legal duty. 2004, c. 3, Sched. A, s. 49 (1). Extent of use or disclosure (2) Subject to the exceptions and additional requirements, if any, that are prescribed, a person who is not a health information custodian, and to whom a health information custodian discloses personal health information, shall not use or disclose more of the information than is reasonably necessary to meet the purpose of the use or disclosure, as the case may be, unless the use or disclosure is required by law. 2004, c. 3, Sched. A, s. 49 (2).sisa016 “Mesica infermaten management or employers | All About Iformation ALL ABOUT INFORMATION JIG Medical information management for employers Igained a penchant for diagrams during my foray into the business world that I make no apologies for! I'd like to build this post around the diagram below, which illustrates a very common model by which employers manage medical information — i.e., one in which the employer seeks information from an employee's treating physician through its own medical adviser. = es 4 i | j Employer Medical Adviser | | | t i t . i F i 8. Employee Treating Physician The point I'd like to make is that role definition is key to effective medical information management. When there is confusion about the players’ roles and responsibilities (especially vis- a-vis confidential medical information) the management process tends to break down. Relationship “A” is the employment relationship. In most cases employers cannot obtain employee medical information without express written consent, but employees have a duty to consent to the release of medical information when it is reasonably necessary to the administration of the employment relationship. Employers typically need medical information for four purposes: (1) to determine the validity of an absence, (2) to determine eligibility for an income protection benefit, (3) to develop accommodation plans and proposals and (4) to ensure that employees can safely return to work. In Ontario, section 49 of the Personal Health Information Protection Act requires employers to use and disclose medical information for only those purposes specified in the written medical release (ordinarily, the four noted above) and, essentially, share information internally on a need to know basis. tpettboutrformaton.ca/200718/Olmexcal-nformation-maragomet-for-omployers! 18stats Mecca iformaton menegemert er employers | Al Att ermaon Relationship “B” is the treatment relationship. An employee's treating physician has a professional and legal duty to act in the employee's best interests. This does not mean that a physician must let a patient dictate his or her opinion. To the contrary, abdicating professional judgment in this manner is a breach of a physician’s duty. In this regard, the Ontario Medical Association (http://www-oma.org/phealth/trtw.htm) has helped physicians reconcile employee and employer interests by advising them of the health-related benefits of a safe and early return to work. Treating physicians also have a professional and legal duty to maintain patient confidentiality. They are subject to the full range of “health information custodian” rules in PHIPA, and may only release medical information to employers based on written consent. Relationship “C” is either an employment or contractual relationship. Employers often retain the services of medical professionals to act on their behalf. These professionals typically (1) take custody of medical information received pursuant to a release and share it with management as permitted by the medical release and on a need to know basis, (2) evaluate and make objective recommendations to the employer about the sufficiency of information provided and (where it is sufficient) about eligibility for paid or unpaid leave, accommodation plans and return-to- work and (3) act as the employer's liaison (and advocate) with the treating physician. The medical adviser does not have independent legal or professional duties to the employee. He or she acts as the employer and shares the employer's section 49 duty. Does he or she nonetheless play an important role in medical confidentiality? Yes. The medical adviser role helps create a confidentiality screen. By taking immediate custody of the medical information on behalf of the employer, he or she is the means by which the “need to know’ rule is given effect. This is a difficult role, and sometimes out of a sense that he or she has an independent duty of confidentiality to the employee, the medical adviser takes a position at odds with the employer. This type of conflict can generally be avoided by establishing reasonable and PHIPA-compliant policy to guide the internal distribution of medical information received pursuant to a medical release. The advisory model described above is common, but there are other models by which employers seek and obtain medical information they need to make employment-related decisions. In the Ontario Bar Association’s latest Eye on Privacy (nttp://www.oba.org/en/pri/newsletter_en/v8n1aspx#a8), I wrote an article called, “Understanding Church and State ~ The Occupational Health and Safety Department and PHIPA” Ielaborated on Relationship “C” and briefly discussed how the legal duties change when an employer actually provides health care to its employees. I missed an opportunity to draw diagrams in that article, but if you're interested in this topic you may nonetheless find them helpful. Ancesianally, someatiyour visitors: mayeseean advertisement here You can hide these ads completely by upgrading to one of our paid plans. oy [ pismss hipaa rformtion c/2007108/oimecica-nformaton-management-fr-omployers! 23Adjudication Summary Return to work program not a health information custodian HIC-050014-1 The Office of the Information and Privacy Commissioner/Ontario (the IPC) received a complaint from an individual who was an employee of a municipality. The complainant stated that his ‘personal health information had been disclosed to management staff at the municipality by a ‘nurse working in the municipality's employee assistance unit, and that this disclosure contravened the Personal Health Information Protection Act (the Act). ‘The complainant indicated that the personal health information consisted of the contents of an email the nurse received from his insurance company regarding his return to work and notes made by the nurse of conversations she had with the complainant regarding his return to work. The IPC assigned the matter to « mediator who sought to find a resolution. Mediation was not successful, and the IPC subsequently commenced an investigation into the complaint, including the issue of whether the nurse and/or the municipality are health information custodians. The employee assistance unit performs a variety of functions, including disability management for disabled and/or injured employees. Disability management involves assisting in the development and implementation of plans relating to the return to work by employees of the municipality. All records relating to the disability management function of the employee assistance unit are stored separately from other files that the unit generates. It was as a result of ‘the disability management function that the complainant's interactions with the nurse and the employee assistance unit arose in order to facilitate his retumn to work from a disability leave. Prior to the complainant's return to work, the nurse received an email from his insurance company, advising that the complainant’s physician indicated that he was medically stable and could return to work with no restrictions. The nurse then contacted the complainant and advised him that she would notify his department that he was ready to return to work. ‘The nurse contacted the municipality's Disability Management Consultant and Labour Relations Consultant and advised them thet the complainant was cleared to retumn to work, with no medical restrictions in respect of his work activities. The complainant returned to work, had concems regarding accommodation to attend medical appointments and filed an unfair labour practice application with the Ontario Labour Relations Board. ‘As a result of the unfair labour practice application, the municipality’s Labour Relations Consultant obtained a copy of the email correspondence that was sent to the nurse from the insurance company and received it for the sole purpose of responding to the unfair labour practice application,‘After the IPC’s investigation was complete, the IPC determined that the complaint would not proceed to review pursuant to section 57(4) of the Act. Based on the particular facts of this case, ‘The IPC determined that the nurse and the municipality, as the person who operates the disability management program provided by the employee assistance unit, are not health information custodians as defined in section 3 of the Act. In making the above determination, the IPC reviewed section 3(1) of the Act, which defines a health information custodian, including a person who operates a centre, program or service for community health or mental health whose primary purpose is the provision of health care. In addition, the definitions of “health care practitioner” and “health care” set out in section 2 of the Act were considered.ALL ABOUT INFORMATION IPC says a physician acting as assessor is not a health information custodian On August 25th the IPC/Ontario held that a physician retained to complete a Custody and Access Assessment Report was not acting as a health information custodian, thereby giving helpful guidance on an issue that has been subject to great confusion. The IPC explained: The definition of “health care practitioner” in section 3(1) is premised on the fact that the health care practitioner must be providing health care. Further, “health care” as defined in section 2 of PHIPA must be for a “health-related purpose.” In my view, on the facts of this particular case, the service provided by Dr. Morris was not provided for a health-related purpose, but rather for the purpose of assisting the parents, and possibly the courts, to develop a parenting plan which would function in the best interests of the child. Therefore, and for the further reasons set out below, I find that Dr. Morris woas not providing health care when he provided a service in this capacity. Consequently, I find that Dr. Morris twas not a “health information custodian” as defined in section 3(1) for the purpose preparing the Custody and Access Assessment Report. As set out below, this interpretation of PHIPA is consistent with the decision of this office in complaint number HC-050014-1, with the policy behind subsection 20(2) of PHIPA, with the decision of the Federal Court of Appeal in Wyndowe v. Rousseau, and with public guidance provided by the Ministry of Health and Long-Term Care in relation to the definition of “health care.” The IPC also dealt with the Divisional Court decision that has contributed to the confusion — Hooper v College of Nurses of Ontario. The IPC said: tp liaboutrformation.ca/201S0G0S/pc-says-e-ptyscia-actng-es-assesscr-Io-ncts-heatrinformation custard 18siazo16 IPC sas physi ang a assessor isnot haath ifrmatoncumtaian|Al Abortion The Divisional Court held that pursuant to section 76 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, the investigator appointed by the College of ‘Nurses of Ontario had the jurisdiction to request and use the records from the Sunnybrook and Women’s College Health Sciences Centre. The Divisional Court further held that the Sunnybrook and Women's College Health Sciences Centre had the jurisdiction to disclose these records to the College of Nurses of Ontario. The Divisional Court stated that the Occupational Health and Safety Department ‘was providing health care and therefore the information contained in the records at issue was personal health information as defined in section 4 of PHIPA. This decision does not discuss how this interpretation of “health care” would more broadly affect the collection, use, and disclosure of personal health information on the basis of assumed implied consent pursuant to section 20(2) of PHIPA. On my review of this decision, it was not necessary for the Divisional Court to decide whether or not the Occupational Health and Safety Department wns providing health care and therefore that the information contained in the records was personal health information. If they were not records of personal health information, the disclosure would not be subject to PHIPA. Alternatively, if they were records of personal health information, the disclosure would be permitted, as the Divisional Court noted, pursuant to sections 9(2)(e) and 43(1)(b) of PHIPA. As a result, the statement by the Divisional Court that the Occupational Health and Safety Department was providing health care and that the information in the records was personal health information is obiter dicta as it was unnecessary to the decision in the case. The decision in Hooper is difficult to reconcile with that in Wyndowe, where the Federal Court of Appeal confirmed that physicians performing an independent medical examination are not “health information custodians” for the purpose of PHIPA. I note that in the Hooper case, the Divisional Court did not have this ofice’s interpretation of section 20(2) of PHIPA or the findings in HC-050014-1 before it. In all these circumstances, I am satisfied that the decision in Hooper, as it relates to what constitutes health care and personal health information, is not binding on me. This is very helpful, in particular to employers who often face an argument that the health care practitioners they retain as assessors and consultants as subject to the “custodial” duties in PHIPA. The only section of PHIPA that typically binds employers and their assessor/consultants is section 49. Aroasionalls eanaobyou sdaltessenayssaespn advertisement here ‘You can hide these ads completely by upgrading to one of our paid plans. [crensoe ion nora monansees © CATEGORIES Health privacy, Prioacy (Not Workplace), Workplace Privacy iipe:altebotirormationca/201S1080SIpo-says-2-physiclan-acting-as-assossor-le-not-2-healinformation-custoary 28ALL ABOUT INFORMATION Ontario arbitrator partly allows medical information management grievance On October 8th, Arbitrator Goodfellow partly allowed a grievance that challenged various ways in which an employer administered its sick leave program. In doing so, he held that: © absent an express prohibition ina collective agreement, an employer is entitled use a third- party disability management administrator; and © absent specific collective agreement authorization, an employer cannot deprive employees of sick pay pending proof of entitlement as a matter of routine. Arbitrator Goodfellow also made the following statement on the application of Ontario PHIPA to. employers: We agree with the Employer that itis not bound by PHIPA in its relationship to its employees. Qua long-term care provider the Employer is a “health information custodian”; qua employer it is not: see e.g. City of Kingston and Canadian Union of Public Employees, Local 109, supra. The same is therefore true of Acclaim. PHIPA is aimed at health care providers, not employers. Neither of the cases referred to by the Union establish otherwise. While both discuss the statute, and while Sanofi Pasteur appears to accept its application, there is no indication that the matter was the subject of any submissions in those cases as it was here and in City of Kingston. Having said that, like those arbitrators, we would view the terms of PHIPA as reflecting the kinds of privacy interests to. which the Employer may be held accountable under the terms of the collective agreement. This is a helpful statement given the confusion in the case law to which Arbitrator Goodfellow refers. era Long CanLt 58768 (ON. LA ii58768,2 158768, Qacasionally, eome,afivour visitors mayeseeian advertisement here You can hide these ads completely by upgrading to one of our paid plans Tags: medical information m: ent (https://allaboutinformation.ca/tag/medical-i tion- management! ERIPA aint mation. caltag/phipal), sick leave administration n.¢ i ] | oismiss MESSAGE © CATEGORIES Workplace Privacy o AUTHOR Dan Michaluk itps:lleboutnformationca/201402Slrtaro-arttrator-party-allows-medical-Ieormation-managemert-rievence! 1IN THE MATTER OF AN ARBITRATION BETWEEN Sault Area Hospital (‘SAH" or “Hospital”) and Ontario Hospital Association (OHA’) and Ontario Nurses’ Association (‘Union” or “ONA") Re: ‘Vaccinate or Mask’ Policy SOLE ARBITRATOR: James Hayes APPEARANCES: OHA and SAH John C. Field, Counsel Dianne E. Jozefacki, Counsel Dave McCoy, Manager, Labour Relations, OHA Kim Lemay, Director, Human Resources, SAH Chris Johns, Manager, Human Resources and Corporate Safety, SAH ONA Kate Hughes, Counsel Philip Abbink, Counsel Sharan Basran, Manager of Litigation, ONA. Glenda Hubley, President, Local 46 David Cheslock, Labour Relations Officer Tyler Boggs, Law Student Hearings on the merits were held on October 1, 2, and 9, 2014, and, in 2015, on January 26; May 11, 19- 21; June 6, 9, 22-26; July 7, 8. 2015 CanLII 55643 (ON LA)concerning** although I do not depend upon his extremely critical recitation. What I find more noteworthy is that the provincial authorities have not taken steps in Ontario to designate influenza for mandatory HCW immunization or to require or recommend the consideration or implementation of some form of a province-wide VOM policy. There is a clear statutory basis for the designation of diseases requiring vaccination. Privacy issues 329. In view of my conclusion that the VOM Policy is unreasonable and contravenes KVP principles, it is not necessary that ONA objections to the Policy on the ground that it violates employee privacy rights be addressed. For reasons of completeness, if my conclusion concerning the Policy’s reasonableness is in error, I make the following brief comments. 330. Assuming the validity of the Policy, and assuming the voluntariness of the employees’ consent, I would have reached the same conclusion as Arbitrator Diebolt on the narrower privacy issue, albeit under separate provincial legislation. 331. In the face of these identified assumptions, I would have accepted the submission of the OHA/SAH that the information at issue would have been excluded from protection under the Personal Health Information and Privacy Act ("PHIPA”) by virtue of ss. 4(4) of that Act and would have been similarly excluded from protection by virtue of ss. 65(6) para. 3 of the Freedom of Information and Protection of Privacy Act ("FIPPA”). 332. Subsection 4(4) of PHIPA excludes certain information from the application of the Act as follows: 433 See above, paras 240-241; Dr, Gardam’s assessment is correct, there isa serious public health policy determination process problem concerning this issue. SI Z S 2015 Canl4. (4) Personal health information does not include identifying information contained in 2 record that isin the custody or under the control ofa health information custodian if (@) the identifying information contained in the record relates primarily to one or more employees or other agents of the custodian; and () the record is maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employees or other agents. 333. Subsection 65(6) para. 3 of FIPPA similarly excludes certain information from the Act's ambit: 65. (6) Subject to subsection (7), this Act does not apply to records collected, prepared, ‘maintained or used by or on behalf ofan institution in relation to any of the following: ‘3, Meetings, consultations, discussions or communications about labour relations or ‘employment-related matters in which the institution has an interest. 334, While not binding, a decision of an analyst from the Office of the Information and Privacy Commissioner of Ontario is instructive on these points.‘ The decision deals with a nurse's complaint about a VOM policy at North York General Hospital in which individuals who received the influenza vaccine had identifying stickers on their badges or a lanyard of a different colour. The nurse argued that this improperly made her persona health information public knowledge. Broadly stated, under the VOM Policy, vaccination information is collected about employees and is maintained for a purpose other than the provision of health care to those employees. As a result, it is excluded under ss. 4(4) of PHIPA. The information is also collected, maintained and used by the SAH for the purpose of implementing a VOM Policy setting out terms and conditions of work and so relates broadly to labour relations or employment-related matters in which the institution has an interest. As result, itis also excluded under ss. 65(6) of FIPPA. 335. Ultimately, though, these observations on the privacy legislation are obiter and do not affect the determination of these grievances because | have ruled that the VOM Policy as a whole fails to comply with KVP principles and so constitutes an unreasonable exercise of management rights. In the course of that determination, | 44 Complaint HC 14-108 re North York General Hospital, March 26, 2015 (Rioux) 2015 CanL.it 55643 (ON LA)have also ruled that | am not convinced that the VOM Policy encourages truly voluntary immunization and/or disclosure of immunization status. Final Comments 336. I return now to the issue raised at the outset of this Award. 337. Let there be no doubt that the intentions and opinions of CEO Gagnon, Dr. McGeer, and Dr. Henry are entitled to great respect. However, the VOM Policy—a mandated regimen for how patient care is to be delivered—is at the same time a unilaterally imposed term and condition of employment and it is properly and squarely within an arbitrator's jurisdiction to assess it as such. While this has not been an easy case because of the volume of expert evidence and the quality of the competing expertise, the only forum in which it can be required that labour relations considerations be addressed is before an arbitrator. 338. To review the labour relations implications of the VOM Policy does not disregard or discount the medical expertise. It simply recognizes that the medical expertise has a different focus that is incomplete for the purposes of the legal question at issue. While important in assessing what is reasonable, the medical expertise is not controlling in and of itself because it does not engage the labour/human rights/privacy expertise that balances employee rights with scientific information.*35 339. It is surely the case that there are better ways of resolving complex policy issues such as this, in which many stakeholders have an interest, butthis does not in any way displace or discredit the legitimate role of labour arbitration. It is very likely that the science will evolve and opinions about the prevention and control of influenza disease may coalesce into more of a consensus than has been achieved to 485 The TAHSN Report acknowledges certain of these interests as noted above. See: Exhibit 185, ‘Appendix C. "7 2016 CanLll 55643 (ON LA)Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 65(6) Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 1, Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding. 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. 4, Meetings, consultations, discussions or communications about the appointment or placement of any individual by a church or religious organization within an institution, or within the church or religious organization. 5. Meetings, consultations, discussions or communications about applications for hospital appointments, the appointments or privileges of persons who have hospital privileges, and anything that forms part of the personnel file of those persons. 1996, c. 4, 8. 82; 2010, c. 25, s. 24 (18). Exception (7) This Act applies to the following records: 1. An agreement between an institution and a trade union. 2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters. 3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees. 4, An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment. 1996, c. 1, s. 82.INFORMATION AND PRIVACY COMMISSIONER/ONTARIO 4 Bren errs The Personal Health Information Protection Act, 2004: (a) to establish rules for the collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information and the privacy of individuals with respect to that information, while facilitating the effective provision of health care (6) to provide individuals with a right of access to personal health information about themselves, subject to limited and specific exceptions set out in this Aa; (¢) to provide individuals with a right to require the correction, endment of personal health information about themselves, subject 10 limited and specific exceptions set out in this Act; (d) to provide for independent review and resolution of complaints with respect t personal health information.When passed in 1987, Ontario's Freedom of Information and Protection of Privacy Act (the A:t) was among the most progres- sive of the day. Most jurisdictions, both in Canada and abroad, hhad not yet formally recognized the value of freedom of infor- mation by enacting legislation. Today, the Tandscape has changed. More than 50 countries have adopted FOI aws, and an additional 30 are inthe proces of doing so. In Canada, the gov- cxnments of every province and territory are now subject to freedom of information legislator. Since enactment, Ontario's provincial Aer, and the subsequent Municipal Freedom of Information and Protection of Privacy Act which came into fore January 1, 1991, have enhanced govern- meat openness and uansparency by making the vast majority of government records subjectto public scrutiny. Through the two det, the public has been able to gain access to important information concerning policy proposals, contracts and spending priorities. “The curtent provincial government was elected on a platform that included a commitment te enhance openness and promote democratic renewal. One of the ways that the government has chosen to act on this mandate i to formally recognize the value of freedom of information legidaton (see the Acces and Privacy Blueprint for Actin: A Progress Report While these be taken, including amending she Acti, to ensure that measures aimed at enhancing transparency and openness are enacted tial developments are positive, further steps can into law. This would bring Ontario's legislation into Kine with more recently enacted freedom of information legislation across Canada, Scope of the Acts (Onc ofthe foundations underlying freedom of information isthe principle that organiations tha: exit by virtue of public Funding shouldbe subject to public scrutiny through FOI laws. Ontario. would be able to extend the application of this principle by extending the range of entities that are subject to the Acts. Recently, the Ontario government extended the application of the provincial Act to the publidy owned hydeo utes, Hydeo (One Ine, and Ontario Pier Generation Inc, stp the IPC had been cling for since the main successor companics to Ontario Hiydro were moved outside FO! by the previous government ‘Andy in its spring 2005 budger bill, the government announced plans to bring universities under the Act, which the TPC has been urging for a number of years. In the interests of promoting greater accountability and trans- parency, the government should expand the scope of coverage of the Acts by greatly expanding the range of organizations that are subject tothe provisions. For example, the provincial Act applies ‘only to ministries of the government of Ontario ard any agency, board, commission, corporation or other body designated as an institution under the regulate are recipients of large transfer payments from the government are not subject to the Acts, and therefore, the records of these ‘organizations are not subject to scrutiny by the public Recently, the provincial government passed the Audit Statute Law Amendment Act, 2004, which extended the power of the Auditor General of Ontario to conduct value-for-money audits of institutions in the broader public sector, including audits of hospitals and universities, Similar amendments should be under- taken with respect to records under Ontario’ FOI regime. ‘The FOI laws in a number of other jurisdictions in Canada are ‘more inclusive. For instance, in British Columbia, hat province's statute applies to all organizations that are deemeé to be “public bodies;” which includes hospitals, universities and British Columbia's Child Protection Services (which is the equivalent of Ontario's Children’s Aid Societies). None of these entities are covered under Ontario's FOI legislation, and subjecting these organizations to freedom of information requests would help shed light on the operations of these organizations Make employment records subject to the Act In 1995, the Ontario government of the day pasted Bill 7, the Labour Relations and Employment Statute Law Amendment Act. ‘That law included amendments to Ontario's freetom of infor- ration legislation that removed a wide array of records con- cerning employees and labour relations from the scope of the Acts, By virtue of this amendment, employees of provincial and, municipal government organizations are no longer entitled to submit requests for accesso their own personnel files,"zations is not subject to the statutory privacy protections in the legislation. exclusion is particularly troubling when the employment information of employees of federally regulated organizations is subject to privacy legislation — the Personal Information Protection and Electronic Documents Act (PIPEDA). Under PIPEDA, employees of federally regulated organizations (uch as banks and airlines) have a right of access to, end may seek correction of, their personal employment information, and the right to file privacy complaints related to the werkplace Public sector employees of the Ontario government and munic- ipal organizations cavered under the Municipal Precdonm of Information and Protection of Privacy Act do not possess similar rights, The access and privacy rights of public sector workers should be restored through the repeal ofthe Bill 7 provisions. Proactive disclosure While making records availble to the publi in response to formal access requests is an important component ofa culture of openness, government organizations should also strive to enhance transparency whenever possible by routinely and proae- tively disclosing relevant information, even in the absence of formal feedom of information request From an international perspective, the connection between the Internet and freedom of information legislation is not new. In the United States, departments of the federal government are now required to create online “electronic reading rooms,” where the public is able to access information that has been the subject of multiple FOI requests. he government of Quebec recently introduced Bill 86, which would amend that province’ access 10 information legislation to requite all public bodies to implement “information distribution polices.” These policies would estab- lish which documents held by government should be proactively disclosed, and specifically notes that certain information should bbe made systematically available through the Internet. A similar scheme should be adopted in Ontario, £100 Anna Rep 204 Conclusion ‘The IPC is pleased with the steps the provincial government has taken on freedom of information. However, significant enhance- ments tothe legislation are needed to bring Ontario’ freedom of information laws up to the standards of the 21st century.Occupational Health and Safety Act, R.S.O. 1990, c. 0.1 Employer access to health records 63(2) No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record conceming a worker without the worker's written consent.Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 5(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances. 7.3 In addition to the circumstances set out in section 7, for the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, a federal work, undertaking or business may collect, use and disclose personal information without the consent of the individual if (a) the collection, use or disclosure is necessary to establish, manage or terminate an employment relationship between the federal work, undertaking or business and the individual; and (b) the federal work, undertaking or business has informed the individual that the personal information will be or may be collected, used or disclosed for those purposes.