Privacy commissioner wins partial victory over P.E.I. government

P.E.I.'s privacy commissioner has won a partial victory in the latest round of a two-year legal battle with Health PEI stemming from a report on an investigation into a complaint lodged at the Queen Elizabeth Hospital.

According to documents filed in P.E.I. Supreme Court, the doctor who was the subject of that complaint requested a copy of the report through access-to-information.

Health PEI refused to provide the document to the doctor, saying the record was exempt from disclosure because it stemmed from a quality improvement exercise.

Privacy Commissioner Karen Rose ordered the agency to provide her a copy.

She wanted to ascertain for herself whether the report was exempt from disclosure.

Rather than provide a copy to the commissioner, Health PEI  applied for a judicial review of her decision in 2017.

P.E.I.'s Health Services Act dictates that no person has a right to access quality improvement information, but Rose argued that doesn't prevent the privacy commissioner from being able to review documents to verify they qualify for an exemption.

Health PEI win overturned

Health PEI won its initial challenge, with costs, in a ruling issued in May 2018. But that P.E.I. Supreme Court decision has now been overturned by the P.E.I. Court of Appeal.

In the appeal court decision, Justice John Mitchell concluded Health PEI was wrong to classify the report as a quality improvement exercise.

"It is indisputable that all the information … was gathered, not for the purpose of a quality improvement activity, but for the purpose of an accountability report to be used in a disciplinary process," Mitchell wrote.

The judge also said the agency applied that quality improvement designation after the initial investigation at the hospital had been conducted. Mitchell said Health PEI cannot make that declaration after the fact, just to protect the report from disclosure. 

The appeals court wrote that the provision to allow Health PEI to withhold quality improvement information is important, in that it encourages staff to speak out on issues that need to be addressed. But the court also said "this powerful shield must be used responsibly."

"It is incumbent on Health PEI to keep its accountability/discipline processes … separate and distinct from quality improvement activities," wrote Mitchell.

Court sides with Health PEI on 1 issue

However the appeals court sided with Health PEI on one main issue, saying it's not for the privacy commissioner to verify whether materials deemed as quality improvement information by Health PEI are what the agency says they are.

So while the commissioner told CBC she now expects to receive the document at the centre of this particular legal dispute from Health PEI, in future she said Health PEI won't be required to share quality improvement information with her.

However, Rose said the privacy commissioner has to be provided with "adequate information to conclude that the record is, in fact, quality improvement information, based on the process followed by Health PEI," and she said Health PEI's decisions can still be challenged by those requesting information.

The legal bill for the privacy commissioner's office for this case came to $61,832.78. There was no immediate response from Health PEI on how much it spent on legal costs for this case.

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