Health ministry wrong to not release northern Ont. abortion info, privacy commission rules

Sudbury -

Ontario's Information and Privacy Commissioner has ruled a decision by the health ministry to not reveal abortion statistics for communities in northern Ontario was wrong.

In a ruling released Nov. 10, the commission said the decision by the province to withhold the information for “potential privacy and safety/security issues" was unjustified.

The case centres on a media request for the data, covering abortions performed in 2017 and 2018 in Thunder Bay, Temiskaming, Algoma, Cochrane, Kenora, Manitoulin, Sudbury, Rainy River, Parry Sound and Nipissing.

All information that would identify individual persons or facilities was excluded from the request. After initially granting the request and calculating a fee, the Ministry of Health changed its mind.

"The ministry noted that its practice was to release de-identified data on abortion services at the provincial level," said the transcript of the appeal.

Initial decision 'erroneous'

"The ministry apologized for its 'erroneous' access decision, refunded the fee deposit and asked the appellant to advise it if he was interested in receiving provincial-level data."

And during the appeal, the ministry said it was withholding the information "on the basis of its view that the data it contained could reasonably be used to identify specific facilities where abortions are performed."

The ministry was relying on the section of the Freedom of Information and Protection of Privacy Act that allows information about abortions to be kept secret when "the information identifies an individual or facility, or it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual or facility."

To make its case, the commission said the Ministry of Health had to show that the information being requested both relates to abortion services and identifies an individual or location of a facility where abortion is performed.

In their arguments, the ministry said because of lower population numbers in the north, it was using its 'small cell count policy' to withhold the record in its entirety.

"A small cell exists where the pool of choices or candidates is so small that it becomes possible to guess who the individual or choice might be," the transcript said.

In response, the person requesting the information argued that they were looking for raw numbers, not anything else.

No info on individuals, facilities

"These statistics provide no information at all about where they are performed and certainly nothing even close to identifying the individuals involved," the appellant wrote.

"Further, I don’t see how it could be utilized, either alone or with other information, to identify an individual or facility any more than releasing province-wide abortion figures already does."

In its ruling, adjudicator Daphne Loukidelis wrote that the Ministry of Health abandoned earlier arguments that releasing the information could lead to an individual being identified.

Previous rulings had denied access, the commission said, but in those cases, specific information on either facilities or individuals was being sought, not general statistical information.

In this case, information being sought was limited to the number of abortions performed in 2017 and 2018 in six of the 10 districts in northern Ontario.

"I am not satisfied, however, that disclosure of this particular information could reasonably be used to identify facilities where abortions are performed," Loukidelis wrote.

"The ministry has not provided me with sufficient evidence to establish a link between what I view as statistical information and the identification of any facility or facilities that provide abortion services in Ontario’s northern region."

Similar to suicide stats

Further, the information being requested does not include queries about where the abortions are being performed – whether they take place at a clinic or hospital, for example.

In a similar case, the commission allowed the release of the number of suicides in Ontario hospitals, ruling that "the statistical information could not reasonably be expected to identify the individuals who died by suicide."

To deny information on abortion statistics, the Ministry of Health would have to show details of its "small cell" policy, and how it determines when it applies to information requests.

"In this appeal, the ministry has not sufficiently explained how the small cell count concept applies," Loukidelis wrote.

"There is no way to resolve the question of the appropriate ratio on the scant evidence before me, given the ministry’s vague submission ... that each of the six districts has 'five or less facilities with results.'"

"The ministry simply has not explained how the numbers of abortion services provided under the two OHIP fee codes or any other information in the tables could be connected with facilities providing those services," she added.

Loukidelis ruled the ministry was in error in rejecting the information request and directed it to issue a new order.

Read the full decision here.