Doctors may be in the front line when it comes to health care issues, but they are well back in line in gaining access to the government records in which these issues are discussed.
Consider the recent federal policy adopted on the use of marijuana for medicinal purposes. This Health Canada initiative had been in the works for several years, and if physicians had been monitoring its development via access-to-information legislation they might have followed and shaped these regulations as they developed. Instead, they were presented with a fait accompli. In the past few months, information obtained through the legislation has produced many headlines, including several dealing with health care: “Health care cuts in Canada could create shortfalls in terror attack: report” and “Hospital pharmacist warned about drug memo issued in 1998, outlined ways to cut risk of deaths” are but 2 examples.
So where to begin? Before trying the formal process, call the agency in question to see what information is available without using access-to-information laws. If the only route is this legislation, then ascertain whether the information you want is held by an agency covered by it. Prince Edward Island is the only major Canadian jurisdiction without access-to-information legislation, although not all provincial–territorial acts cover local municipalities or special bodies like hospitals and social-service agencies.
When you do apply, be as specific as possible. List specific dates and the type of records being sought, and use a focused approach that concentrates on a single subject (such as medicinal marijuana). Also, remember that you are applying to receive records, not to have specific questions answered. Indicate that you are willing to discuss the information you are seeking.
Most jurisdictions want requests directed to a specific agency, along with the applicable application fee, and some require the use of forms. Once you have filed your request, remember:
· This is not an instant-disclosure process. Records do not have to be released for at least 30 days, and this period can be extended if third-party data are involved or consultations are required.
· Many records are exempted from disclosure for reasons ranging from commercial confidentiality to law-enforcement matters. Some issues, such as cabinet confidences, are either totally excluded or exempted from release for many years. Some exemptions are discretionary. In most access legislation there is a limited public-interest provision that only occasionally overrides some of the exemptions. Not all agencies or even branches within an agency interpret exemptions the same way.
· Fees can be assessed for manual or computer searches, record preparation, computer programming and copying. This can add up. Records like emails can provide key behind-the-scenes information, but may generate large fee estimates. Narrowing an application's scope or viewing records in person may reduce the cost.
Once an application is made, track its progress through calls and a written log. If there are delays or excessive fees, you probably have a right to complain to an information commissioner or ombudsman. Remember, the art of negotiation is part of the process.
When records are received, confirm that they are what you wanted. Your appeal rights include complaining about exemptions, fees and incomplete responses, or eventually taking the matter to court.
Getting records does not end your work, since publicizing the information you have received or the lack of response to your request should be part of any access strategy. This could even include sharing your experiences with readers of this journal.
Doctors should also remember that access-to-information rules can be a double-edged sword, because the public can use its provisions to make physicians more accountable in matters such as medicare payments and negligence claims. When this happens, doctors become the third parties and may be consulted by government authorities. Differing jurisdictions treat data disclosure differently. For instance, information on doctors' salaries and extra-billing is protected in some provincial acts but not in others. In British Columbia, access legislation covers professional governing bodies, including disciplinary records of the College of Physicians and Surgeons.
What access laws can do (and could do much better if they were radically improved) is create more transparency for everyone. To engage in the process, you will need curiosity and a good helping of persistence. The skills of a surgeon cutting through to the essential, combined with the patience and information-seeking skills of a family doctor, are bound to be assets in this venture.
Footnotes
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Ken Rubin is a public-interest researcher who has used the access-to-information process many times over the last 20 years. He has a special interest in health, safety and environmental concerns, and is a consultant to CMAJ on these issues.