The IPC recently released a PHIPA decision that provided guidance to health information custodians on the fees that are considered to be “reasonable cost recovery” under the Personal Health Information Protection Act (PHIPA).
The complainant requested access to his medical records following a visit at a hospital, as well as access to video surveillance of the complainant’s exit from the hospital. He was provided full access to his medical records. The hospital blurred facial images of other individuals in the surveillance footage, but denied the request for access to the video in its entirety due to concerns that the complainant could utilize software to reverse the blurring process. In order to protect the privacy of the other individuals in the video, access was denied. The complainant appealed the hospital’s decision.
The IPC found that the video images identified the complainant as a person seeking health care, and was therefore “personal health information” pursuant to s 4(1)(b) and s 4(3) of PHIPA. The adjudicator also found that none of the video footage was dedicated primarily to the complainant’s personal health information, so he only had a right of access to his reasonably severable personal health information in the video, i.e. the images of him in the hospital hallways, and the surroundings, with images of other individuals severed (obscured). The IPC ordered the hospital to provide access to the severed video surveillance. The hospital was able to charge a fee to the complainant for access to the footage.
The IPC indicated that the access fee had to be limited to “reasonable cost recovery”, and the hospital had to first provide the complainant with an estimate of the access fee. The IPC offered guidance to health information custodians in determining what fee may be allowed under the PHIPA, further to s 54(10) and s 54(11):
The framework also provides maximum fees that can be charged for additional services. Fees for severing video footage was not set out in the list of additional services in the framework. The adjudicator found it was reasonable to allow a health information custodian to charge the reasonable cost recovery of this service to the individual making the access request. Of note, a health information custodian is permitted to waive the payment of all or any part of the fee, if in its opinion, it is fair and equitable to do so (see s 54(12) of PHIPA).
Health information custodians should avoid charging a fee in excess of that set out in the framework to respond to an access request, or have a well-documented explanation for charging a higher fee. Given the guidance provided by the IPC in PHIPA Decision 117, a complaint brought against a custodian for charging a higher fee will likely result in a finding in favour of the complainant.