The complainant is the parent of a child whose sudden death was investigated by the Ontario Provincial Police (OPP). Under the Personal Health Information Protection Act, 2004 (PHIPA), the complainant made a request to a named physician (Dr. X) with privileges at the respondent hospital for access to a report and related records arising from the OPP’s request for an expert opinion to assist in the OPP’s death investigation. The hospital responded to the request on behalf of Dr. X, based on its initial position that responsive records would be hospital records. Later, during the IPC’s review, it became clear that the records sought by the complainant arose from the OPP’s retainer of Dr. A (a different physician with privileges at the hospital), and not Dr. X, for an expert opinion to assist the OPP in their investigation.
Through its various searches, the hospital located responsive records in its email system. These include Dr. A’s expert opinion report for the OPP, records the OPP provided to Dr. A for the purpose of the expert opinion, and other communications between Dr. A and the OPP relating to the retainer agreement executed between them for the expert opinion. The records also include an email between Dr. A and Dr. X, with whom Dr. A consulted about the expert opinion. Ultimately, the hospital denied access to all responsive records on various grounds in PHIPA and in the Freedom of Information and Protection of Privacy Act (FIPPA). The complainant took issue with the hospital’s decisions and complained to the IPC.
In this decision, the adjudicator finds that the complainant has no right of access to the records under PHIPA or under FIPPA. She finds that the responsive records are OPP records relating to the investigation into the death of the complainant’s child, and are not subject to the access provisions in PHIPA because they are not records of personal health information in the custody or under the control of the hospital, or of Drs. A or X, acting in the capacity of a health information custodian for the purposes of PHIPA. The adjudicator also finds that the records are not in the custody or under the control of the hospital for the purpose of the access provisions in FIPPA. In the result, the adjudicator upholds the hospital’s denial of access to the records under PHIPA and FIPPA and dismisses the complaint.