The Broader Public Sector Accountability Act, 2010 and Amendments to the Freedom of Information and Protection of Privacy Act

December 15, 2010 | Kathryn M. Frelick, Jesstina McFadden

Bill 122, the Broader Public Sector Accountability Act, 2010 (the “BPSAA”), was released by the Government of Ontario on October 20, 2010, passed by the legislature on December 2, 2010, and enacted December 8, 2010.  It has not yet been proclaimed in force.

The legislation is directed at accountability in the broader public sector, including universities and colleges, children’s aid societies, hospitals, Local Health Integration Networks (LHINs), community care access centres (“CCACs”) and organizations that receive $10 million in annual government funding.  Partly in response to the Auditor General’s Report on Consultant Use in Selected Health Organizations, it has implications regarding the use of lobbyists and consultants, and public reporting of expense claims.  The legislation also requires compliance with broader public sector procurement directives and amends the Freedom of Information and Protection of Privacy Act (“FIPPA”) to extend its application to Ontario hospitals.

Lobbyists and Consultants

Under the BPSAA, applicable organizations are restricted from using public money to hire external lobbyists to lobby on their behalf for additional funding.  A lobbyist is defined as an individual who acts as a consultant lobbyist within the meaning of the Lobbyists Registration Act, 1998, except for an in-house lobbyist.   Under proposed transitional provisions, agreements with organizations using public funds in this manner would be deemed terminated within 30 days.  Furthermore, the lobbyist would only be able to charge and be paid up to the date provided in the agreement.

In addition to the lobbying restrictions, hospitals and LHINs would be required to provide reports regarding the use of consultants by the organization.  Consultants are considered to be any “person or entity that under an agreement, other than an employment agreement, provides expert or strategic advice and related services for consideration and decision-making”.  A provision has been added to the legislation that explicitly protects information that is subject to solicitor and client privilege from disclosure.

Expense Claims

There are requirements for hospitals and LHINs to disclose, via their public websites, information regarding expense claims.  Under the BPSAA, the Management Board of Cabinet is given the authority to issue directives regarding expense rules, including who may make expense claims, the types of expenses or the amounts that may be claimed, and the circumstances in which they may be claimed.

Directives may also be issued under the Act with respect to the content, manner and timing of such reports, as well as other expectations.  Further, reporting requirements could be extended by regulation to other broader public sector organizations.

Procurement Directives

Directives governing the procurement of goods and services by designated broader public sector organizations may also be issued by the Management Board of Cabinet.  The legislation provides that such directives may incorporate existing government policies or directives.

Compliance and Enforcement

Hospitals and LHINs are required to submit compliance reports attesting to compliance with: responsibilities to report on the use of consultants, prohibition on retaining lobbyists with public funds, and the expense claim and procurement directives.  These must be posted on their respective websites.

To further promote compliance, the Act provides that every employment contract of a senior manager is deemed to contain terms extending the obligations of the hospital or LHIN under the BPSAA to also be obligations of the senior manager.  The compensation of senior managers may be reduced where the organization has failed to comply with its obligations under the Act.

The Act explicitly states that any provision of any contract that conflicts with the provisions of the BPSAA relating to lobbying, expense claims, reporting requirements or any of the enforcement provisions would be considered not valid and thus unenforceable.

Finally, the legislation prevents an action being brought in contract, tort or trust against the Crown or any organization subject to the provisions of the BPSAA.  No judicial review may be sought of a directive issued under the procurement provisions or a legal process undertaken.

The Freedom of Information and Protection of Privacy Act

The BPSAA amends the Freedom of Information and Protection of Privacy Act (“FIPPA”) to extend its application to private and public hospitals as of January 1, 2012.

Freedom of information imposes a general obligation to disclose records that are not expressly exempted from disclosure or excluded from coverage under FIPPA.  Currently, hospitals in Ontario are not captured by FIPPA, although they are subject to the Personal Health Information Protection Act, 2004 with respect to personal health information.

In October 2009, the Ontario Hospital Association asked the Government of Ontario to extend the application of FIPPA to include Ontario hospitals, which was supported by the Information and Privacy Commissioner of Ontario.  It remained unclear what the new regime would mean in terms of FIPPA’s application to hospitals.

Under the amendments, subsection 10(1) of FIPPA is extended to allow broad access rights to individuals requesting access to any record of information in the custody or control of a public hospital, a private hospital or the University of Ottawa Heart Institute.

The right of access only applies to records that came into the custody or under the control of the hospital on or after January 1, 2007.   There are certain records that are exempt from the application of FIPPA, including records relating to the operations of a hospital foundation, ecclesiastical records of a church or religious organization that is affiliated with a hospital, administrative records of a member of health profession regulated under the Regulated Health Professions Act, 1991 that relate to the member’s personal practice; records relating to charitable donations made to a hospital; and records relating to the provision of abortion services.

There are other records that are subject to exceptions, including certain records relating to research and teaching, although the hospital must disclose the subject-matter and amount of funding being received with respect to the research.  There are exceptions for records of meetings, consultations, discussion or communications about appointment and privileges matters, including personnel files, as well as records prepared by or for legal counsel for a hospital.

The Lieutenant Governor in Council is also given the authority to exempt private hospitals from the application of FIPPA.

The application of FIPPA to hospitals will have significant operational implications.  It will require changes to existing processes, policy and procedures and changes to how documents are created, stored and managed.  It will be important for hospitals to act proactively to ensure compliance.

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