The Ford government has won a privacy battle to keep the extent of its nursing, personal support worker and physician shortage secret after Ontario’s privacy watchdog ruled that revealing them could be economically damaging.
In September 2022, Global News filed and subsequently appealed a freedom of information request with the Ministry of Health that included its projections for the number of PSWs, nurses and physicians the province would need in future years.
The government withheld the details, arguing that disclosing them could allow health unions to negotiate for higher salaries and private nursing agencies to squeeze hospitals harder for extra with inflated rates for temporary staff.
More than a year and a half after the request was launched, following a protracted battle in front of the Information and Privacy Commission of Ontario (IPC), the government has won the right to continue to shield the information.
The adjudicator, Alec Fadel, agreed with the government that the information could be used by both public and private interests to “advocate for higher rates” in an April 16 decision.
Although the specific details of how many health-care workers Ontario needs will remain secret, the appeals process laid bare the extent to which provincial hospitals have been forced to rely on nursing agencies to keep services running and hinted at the extent of the province’s staffing crisis.
Ontario Nurses’ Association President Erin Ariss told Global News she was not surprised to hear that sharing the numbers could harm the province’s economic outlook.
“I think it shows what nurses and health-care professionals have been saying all along — that the shortages are so extreme, that we’re in such a crisis.,” she said.
“It does not come as a surprise that we find ourselves in a position where they cannot share the numbers, where they cannot be transparent, where it would cause (economic) harm to see exactly what is happening in health care.”
Minister of Health Sylvia Jones’ office said that when she took over the file, the system was still shaking from the pandemic.
“Ontario, and the rest of the world, was only beginning to recover from the global pandemic,” a spokesperson said. “A pandemic that showed the holes in Ontario’s health care system caused by over a decade of neglect by the Liberal government.”
The government declined to voluntarily disclose the data when asked by Global News.
Government fears health-care workers could ask for more
The information withheld by the government relates specifically to government calculations for the number of physicians, PSWs and nurses Ontario’s health-care system needs.
According to the IPC adjudicator — who can see the government’s arguments and an unredacted version of the document — the information that was withheld “points to specific shortages in 2022, 2023 and 2024 and also estimates gaps in these areas at five and 10 years in the future.”
The government argued in its submissions that sharing the information could hurt its position in ongoing negotiations with various health-care unions. Specifically, lawyers for the Ministry of Health said sharing the “numbers on labour shortages could negatively impact salary increase negotiations the Ministry is currently engaged in” as well as collective bargaining.
The adjudicator accepted the government’s position.
“If the withheld information was disclosed, bargaining units would be in possession of the ministry’s specific numbers, and I agree that it is reasonable to expect that they would be used in negotiations to affect overall compensation,” the adjudicator wrote.
Ariss said if the data was public, the ONA would “absolutely” use it in bargaining with the government to net higher compensation.
“What has shone through here is that this government has professed and proclaimed in the house that they have hired tens of thousands of nurses,” she added.
“So, if that was true, what is this document telling us? There’s a supply-and-demand issue. Why isn’t the government telling the whole truth? Based on their numbers that they speak about in the house, there is no issue. But this document tells us otherwise.”
The government spokesperson said that, since the summer of 2022, Ontario had registered 32,000 new nurses after changing international registration rules.
In his decision, the adjudicator said that even though numbers have been calculated by the Financial Accountability Office of Ontario and other groups may be public, the government’s own internal estimates have not been shared.
“While external stakeholders may generate their own numbers, the ministry’s data points to its own perceptions of the exact labour shortages and therefore reveals the ministry’s bottom line,” he wrote.
Threat nursing agencies will squeeze hospitals further
The government also argued that its growing reliance on nursing agencies to plug recruitment gaps means it is vulnerable to being squeezed by private companies.
If the agencies that provide nurses were to know just how short the province is, the government said, they could charge even higher rates.
“In a climate of limited resources and rising health care costs, the Ministry must endeavour to deliver the best possible health care in the province at the lowest possible costs,” government lawyers wrote, admitting “many hospitals have been filling acute human resource needs by turning to private, for-profit agencies” for support.
The adjudicator summarized the government’s argument as “demand and supply,” agreeing that if nursing agencies were aware of the government’s internal projections, they could look to turn the screw.
“The ministry states that hospitals have already raised concerns about the cost of these private sector nursing fees and have requested additional funding to cover these higher rates,” the adjudicator wrote.
“The ministry submits that if these private sector agencies have access to the withheld information, which shows current and future human resource gaps, such information would likely be used by them to negotiate even higher rates for their services, resulting in the affected organizations’ need for more funding.”
The government spokesperson highlighted spending from its latest financial blueprint as evidence Ontario continues to work to solve the staffing crisis.
“We know more needs to be done, that’s why as part of our 2024 budget, our government is investing $743 million to continue to grow our workforce through increased enrollment and retention programs like upskilling and the external program and an additional $2 billion to continue our work growing, and modernizing, the home and community care sector,” they said.
Privacy watchdog finds some case for public interest
The adjudicator also agreed with Global News that the information withheld by the government was squarely in the public interest.
They said the redacted numbers were different from the information already available to the public and confirmed the information is “relevant to the ongoing public debate concerning health-care workforce shortages” in Ontario.
“I agree that disclosure of the withheld information would provide the ministry’s own estimates of the actual shortages and gaps which is obviously in the public interest and would add new information, that is more than marginal, to this debate,” the decision read.
“After reviewing the representations, various news articles, and the withheld information itself, I find that there is a compelling public interest in disclosure of the withheld information.”
Natalie Mehra, Natalie Mehra executive director of the Ontario Health Coalition, criticized the government for not releasing the figures in the first place.
“The fact the government won’t just come out with the numbers speaks volumes,” she told Global News.
“The shortages are profound. They’re the worst that we’ve ever seen. And there really is not a plan that is sufficient… it’s nowhere near, it’s not even in the ballpark.”
Despite finding a strong public interest, the adjudicator ultimately agreed the government’s argument was “persuasive” and that the economic harm from releasing the data was ultimately not mitigated by the public benefits of transparency.
“Any resulting increase to the health and human resource costs of other affected organizations would revert to the ministry as (the) funder for the health care system through increased OHIP rates for physicians, or the funding obligations to organizations that employ these health care professionals or procure private nursing and personal support worker (PSWs) services,” he wrote.
“Therefore, I find that disclosure of the withheld information could reasonably be expected to negatively impact the government’s ability to manage the costs of providing health care and the overall budget on behalf of taxpayers.”