In a new Decision 96 of the Information and Privacy Commissioner of Ontario (IPC), a father who had access-only (not custody) of his children wanted a certain information from a health care provider. The health care provider refused to confirm or deny they had information about the children. The father complained to the IPC.

The father argued:

1. He was entitled to the information as the children’s father
2. He wanted administrative records only and not records of personal health information when he asked for the dates and times of scheduled appointments, intake documents and information about the intake process (he specifically did not ask for copies of counselling records)
3. A court order gave him the authority to receive the same information as his ex-wife received about the children from the health care provider.

The IPC made a lot of interesting clarifications:

1. It would not confirm or deny that the children were receiving services from the health care provider because to do so was potentially their health information
2. Unlike FIPPA (freedom of information legislation), PHIPA does not give requesters a right of access to general records of a health care provider
3. The father was not entitled to “access” to any records of personal health information because (a) it wasn’t his information; (b) the children were capable to make their own decisions; (c) the children were over the age of 16; and (d) even if the children were not capable, as the access-only parent, his ex-wife would have been the substitute decision-maker.
4. The father was really requesting that the health care provider disclose information to him, not grant him access.
5. The health care provider had a legal obligation to consider the father’s request for disclosure and not ignore it.

Then the IPC said the health care provider had failed to consider its discretion whether to disclose the information to the father on his request and ordered the provider to reconsider based on:

1. Did they have consent to disclose to the father? Because the children were over the age of 16 and capable, that consent would have to come from the children themselves and not the custodial parent.
2. Was there a court order or other legal authority compelling them to disclose to the father?
3. Was there legislation they needed to consider authorizing the father to receive information, such as the Divorce Act or the Children’s Law Reform Act?

You want to know what happened, don’t you?

Me too.

But we don’t know because the IPC ordered the health care provider to “reconsider its decision” to fulfill its obligations to respond to a request for disclosure. The IPC did not tell the health care provider what to do.

We’ll have to wait and see what happens.