Collection of RCMP member's health information unnecessary (RCMP)

Complaint under the Privacy Act (the Act)

1. The complainant has been a member of the Royal Canadian Mounted Police (RCMP). In October 2002, she applied to Veterans Affairs Canada (VAC) for a disability pension. In 2003, VAC responded to the complainant, advising of its decision to award her a disability pension under section 32 of the RCMP Superannuation Act, as well as additional pension entitlements for a dependent. VAC's correspondence also references the diagnosis resulting from a psychological evaluation, as well as financial information, such as retroactive and future monthly compensatory payments to be made to the complainant. The complainant alleges that a copy of this correspondence was inappropriately collected by the RCMP's National Compensation Policy Centre, since she believes that the correspondence contains personal medical and financial information not required for the administration of the pension benefits.

Summary of Investigation

2. In terms of background to this complaint, the RCMP and VAC signed a Memorandum of Understanding (MOU) on September 5, 2002, which transferred the responsibility for the administration and adjudication of disability pension claims by RCMP employees to VAC. As such, in October 2002, the complainant applied to VAC for a disability pension for a condition resulting from her service with the RCMP.
3. A few months later, the complainant received a disability pension decision letter from VAC advising that her disability had been assessed at a specific percentage under subsection 39(1) of the Pension Act and that an additional pension was also payable to her dependent under subsection 34(3) of the Pension Act. The correspondence included details of the complainant's medical diagnosis, which was established following a psychological evaluation conducted in October 2002. Additionally, the correspondence included detailed financial information such as the amount of a retroactive adjustment and the amount of future monthly payments payable to the complainant.
4. VAC's correspondence to the complainant was copied to the RCMP's National Compensation Policy. A copy of the same correspondence was then placed on the complainant's administrative medical file by way of the RCMP's National Health Services branch.
5. The complainant takes issue with the RCMP's collection of (1) her financial information, (2) her medical diagnosis/pensioned disability,^{Footnote 1} and (3) percentage of her disability, which she believes it had no need to know this sensitive personal information.
6. The RCMP was therefore asked to provide this Office with information demonstrating that its collection of the complainant's personal medical and financial information from VAC was indeed necessary and consistent with the purpose for which it was originally collected by VAC.
7. The RCMP takes the position that (in general) it requires medical diagnoses (and prognoses) from VAC when a disability pension has been awarded in order for the appropriate divisional HSO to 1) make recommendations of entitlement for supplemental health care benefits; 2) establish the medical profile of each member; and 3) to make recommendations in the establishment of limitations, restrictions, and capabilities of members who are returning to work.
8. We note, however, that the collection of the complainant's personal information from VAC was by the RCMP's National Compensation Policy Centre, which is the part of its Human Resources Branch responsible for the administration of RCMP members' retirement pension and group life and disability insurance plans, not for the provision of medical or health services.
9. Conversely, there was no apparent need for the complainant's personal financial information to be placed on her administrative medical file.

Application

10. In making our determination, we considered sections 3 and 4 of the Act.
11. Section 3 of the Act defines personal information as information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing: information relating to race, national or ethnic origin, colour, religion, age, marital status, education, medical, criminal or employment history, financial transactions, identifying numbers, fingerprints, blood type, personal opinions, etc.
12. The information at issue clearly fits into the definition of personal information found in section 3 of the Act, since it contains elements of the complainant's medical, employment, and financial information.
13. Section 4 of the Act provides that personal information collected by a government institution must relate directly to an operating program or activity of the institution.
14. The RCMP takes the position that the information collected from VAC does relate to an activity of the institution, which is to provide supplemental health care benefits, to establish a medical profile for each member, and to facilitate members' return to work. The RCMP also takes the position that its collection is authorized under section 4 of the Act because VAC is authorized to disclose the information pursuant to paragraph 8(2)(a) of the Act (disclosure for a use consistent with that for which it was obtained or compiled) by virtue of the MOU between the two organizations.
15. It is therefore important to understand the nature of the relationship between VAC and the RCMP with respect to the administration of disability pensions. As such, the aforementioned MOU between to the two institutions was reviewed.

The MOU between VAC and the RCMP

16. According to theMOU betweenVAC and theRCMP:
    • RCMP members and former members are entitled to benefits under the Pension Act for injuries or illness arising from and attributable to their service. In the past, the role of VAC, with respect to the RCMP, has been limited to the first level of adjudication for RCMP disability pension applications. The Veterans Review and Appeal Board (VRAB) also played a role in reviewing unfavorable decisions and rendering subsequent adjudications. Once VAC adjudicated on a pension application and rendered a decision, the RCMP was responsible for advising the client of the ruling on their disability pension application and for communicating any payment information and instructions to Public Works and Government Services.
    • In response to the complex needs presented by an increasing number of disability pensioners, the RCMP determined that it should transfer the management of disability pensions and health care to VAC.
    • Despite being signed in September of 2002, the agreement came into effect (retroactively) on April 1, 2002.
    • The RCMP transferred to VAC its obligations in relation to the adjudication, assessment, payment, and administration of award and health care benefit entitlements to RCMP members.
    • VAC does not have the legislative authority to provide health benefits to RCMP pensioners or to provide pensions awarded to eligible civilian and regular members; the RCMP will pay VAC for these costs (by way of an Interdepartmental Settlement).
17. Neither the MOU nor its Terms of Reference address information sharing practices between VAC and the RCMP.
18. The MOU clearly indicates, however, that VAC has agreed to provide its services to RCMP members on behalf of the RCMP, which includes the adjudication, assessment, payment, and administration of awards and health care benefit entitlements. As such, it is not apparent that the RCMP required detailed financial information about the disability pension award, the percentage of disability assessment, or the medical diagnosis/pensioned condition at issue. According to the wording of the MOU, the only information required by the RCMP would be the total amount to be paid to VAC by Interdepartmental Settlement.
19. The comingling of medical and financial information in VAC's correspondence resulted in several elements of the complainant's sensitive personal information being collected by the RCMP's National Compensation Policy Centre, which does not, on the surface, appear to be required for the purposes of the Interdepartmental Settlement detailed in the MOU.
20. In our view, the collection of personal medical and financial information from VAC by the RCMP should be governed by the "need-to-know" principle and, accordingly, subject to strict confidentiality policies and controls. As such, personal medical information should not be made accessible to employees who are not involved in the provision of health services and, conversely, personal financial information should not be made accessible to health services personnel.

Relevant Policies

21. In its representations, the RCMP also made reference to its current policies; specifically, Part XIV.1 of its Administration Manual (Health Care Entitlements and Benefits Program). According to Section 2.4 of Part XIV.1, information regarding VAC's adjudication of a disability pension application is relevant to the RCMP for the purposes of benefit determination. However, the RCMP made no specific representation with respect to necessity for the collection of personal financial information from VAC. It therefore remains unclear whether the RCMP actually required any information for the purpose of administering pension benefits, since this function was transferred to VAC in the MOU.
22. With respect to the personal medical information at issue, as mentioned above, the RCMP takes the position that the collection was/is necessary in that the awarding of a VAC pension may be a trigger for determining whether a fitness for work evaluation needs to be conducted and/or whether an employee may be entitled to supplemental health benefits. Reference was made to section 32 of the RCMP Superannuation Act as well as the description of Consistent Uses found in the InfoSource entry for RCMP PPE 808 in support of this position.
23. We also conducted a review of theRCMP's policies with respect to the handling of personal medical information. According toRCMP Health Service Manual AM II.19 (Occupational Health Services), the confidentiality of its members' personal medical information should always be a paramount concern:

    D. 4. Health information collected by the RCMP will be protected by medical confidentiality, and will only be released by Health Services personnel to employees outlined in App. III-11-1, III-11-2 and III-11-6; and, if in the judgment of a health services officer there is a duty to disclose, to the Commanding Officer.

    D. 5. A health professional will not disclose medical information unless such information is considered crucial and essential to an enquiry and is subpoenaed. See RCMP Act, subsec. 24.1(1) to (5) inclusive.

    D. 6. Following the health assessment, the HSO or RCMP-designated physician will release to management only the limitations and/or restrictions on a member's abilities to meet the requirements of his/her occupation. Absolutely no medical diagnosis and/or medical information will be disclosed.

24. According to the appendices referred to in D.4 (Employees Authorized to Have Access to Employee Records in the Course of their Duties), anRCMP member's medical information is only to be accessed by:
    1. Access to Information and Privacy Branch employees complying with the ATIP legislation;
    2. Historian/Researchers, Public Affairs and Information Dir. (Access restricted to the files of those former members over 70 years of age for which the medical file is the only remaining document);
    3. National Health Services;
    4. (Regional) Health Services Officer.
25. It appears based on these policies that access to medical information collected by RCMP Health Services is strictly regulated in order to protect its members' privacy and confidentiality (although we question the appropriateness of disclosing sensitive personal information to historian/researchers or the public affairs and information directorate in the circumstances described in the policy).
26. Accordingly, it does not appear that the collection of personal medical information by the RCMP's National Compensation Policy Centre was consistent with the RCMP's own internal policies restricting access to sensitive and confidential medical information. Similarly, none of the policies reviewed indicated a need for National Health Services or HSOs to have access to any type of personal financial information.

The Systemic Nature of the Complaint

27. During the course of the investigation, information came to light that the issue of the inappropriate collection of sensitive medical information by the RCMP's National Compensation Policy Centre from VAC was systemic in nature. The complainant was able to provide information demonstrating the continuous and routine collection of personal medical information by the RCMP from VAC between 2005 and 2010, despite a request by the RCMP for VAC to revise its disclosure practices.
28. The complainant in this matter also designated a representative, who provided the investigator with a copy of correspondence dated November 2010 that he received from the Deputy Coordinator ofVAC's ATIP branch, stating that:

    Veterans Affairs Canada is, on request by the Royal Canadian Mounted Police (RCMP), responsible for adjudicating claims for disability pensions for serving and former members of the RCMP. The authority for members and former members of the RCMP to have eligibility for a disability pension is derived from the RCMP Superannuation Act (Part II). Responsibility for a still serving member's fitness assessment, occupational health and safety remains as the sole responsibility of the Minister for Public Safety and Emergency Preparedness.

    Until December 2002, the payment of monthly disability pensions and the costs of treatment related to the pensioned condition(s) were made directly by the RCMP. During this time, copies of pension decisions and Summary of Assessments and Veterans Review and Appeal Board favourable rulings were provided to the RCMP to support the processing of payments of the disability pensions and related treatment benefits to RCMP members.

    Information was also provided to the RCMP because rulings on individual requests for disability through VAC do not include any specific wording about restrictions or limitations for employment. Disability pensions and the associated percentages address permanent loss of physical/mental integrity, pain, as well as impact on personal life, recreational activities and work.

    In December 2002, the RCMP requested VAC to assume direct payment of monthly pension cheques for all serving, retired and certain civilian RCMP members. In addition, the RCMP requested VAC to assume the administration of health coverage for service related disability of retired RCMP pensioners. During this time (December 2002 to March 2010), complete copies of disability pension decisions continued to be provided to the RCMP for serving members for the provision of treatment benefits related to the member's pensioned condition(s).

29. The complainant's representative also provided the investigator with a copy of correspondence dated October 2005, from the Director of the Program Support Directorate in the RCMP's Occupational Health and Safety Branch to the A/Director of Disability Pension Adjudication at VAC, in which an agreement was detailed between the RCMP and VAC that the disability award letter would be modified to a one page summary for each member. This summary was to include only: 1) the member's name and regimental number; 2) the member's home province; 3) the pensioned disability; and 4) the percentage level of the disability. The correspondence also advised that the information was to be disclosed directly from VAC to the appropriate RCMP Health Services Officer rather than to the National Compensation Policy Centre. This change was to come into effect by November 15, 2005.
30. This policy change indicates that a member's medical diagnosis should, in fact, not have been routinely collected to the RCMP's National Compensation Policy Centre as it was not required. Additionally, it indicates that the RCMP does not require detailed financial information about specific pension awards.
31. Despite theRCMP's request in 2005, the same information continued to be collected fromVAC by theRCMP's National Compensation Policy Centre, until 2010.VAC's November 2010 correspondence to the complainant's representative goes on to explain the following:

    In March 2010, VAC changed its practices on direction from the RCMP, to limit the information sharing to only five key pieces of information for still serving members. Specifically, member's name and regimental number; their province of residence; the description of pensioned condition(s); percentage of assessment and effective date are now provided.

    This limited information continues to be shared with the Members Divisional Health Services Officer based on the continuing requirements relating to fitness for duty and occupational health in accordance with RCMP internal policies.

32. It is unclear why the RCMP continued to collect the complete copies of disability pension decision letters between 2005 and 2010, since it had already identified that the practice was not consistent with its own policies (or with the requirements set out in section 4 of the Act). It is equally unclear as to why the RCMP did not remind VAC during this period of the revised procedure that was to come into effect by November 15, 2005.

Findings

33. The investigation established that the RCMP's National Compensation Policy Centre did, in fact, collect the complainant's medical diagnosis and personal financial information in the form of VAC's pension award letter of 2003. The RCMP made representations that its collection of this information from VAC was for a purpose consistent with that for which it was collected as described in paragraph 8(2)(a) of the Act. The RCMP ultimately concludes that the collection of this information is therefore authorized under section 4 of the Act.
34. Our review of the MOU between VAC and the RCMP revealed that it does not specifically address the sharing of personal medical or financial information of RCMP clients but only refers generally to the processing and adjudication of an applicant's claim.
35. Since (A) the 2002 MOU transferred responsibility for the adjudication, assessment, payment and administration of award and health care benefit entitlements to RCMP members from the RCMP to VAC; (B) the RCMP has not established that its human resources professionals at the National Compensation Policy Centre had any need to know the complainant's medical or financial information at issue; and (C) it would not be within the reasonable expectations of the complainant that her personal financial information would be made accessible to medical services staff, neither the collection of her personal financial information nor her personal medical information can be considered to have been for a consistent with the requirements found in section 4 of the Act and was therefore in contravention of the Act.
36. We are therefore of the view that this complaint is well-founded.
37. This type of sensitive personal financial and medical information was collected by the RCMP from VAC between 2002 and 2005 without a proper information management agreement in place - a deficiency that continues to date. The same information was collected by the RCMP's National Compensation Policy Centre for a five-year period between 2005 and 2010, despite the RCMP's request that VAC's disclosures be limited to only the member's name and regimental number, their province of residence, the description of pensioned condition(s), percentage of assessment, and the effective date, and be provided only to the member's divisional HSO. This issue affected not only the complainant in this matter, but was a systemic contravention of the Act affecting a significant number of RCMP employees during this time period.

Recommendations

38. Based on the foregoing, we strongly recommended to the RCMP that the MOU be updated to provide comprehensive information about the proper flow of such sensitive personal information between the two institutions. The MOU should also be reviewed periodically to ensure that it remains valid should there be any changes in program delivery.
39. We also recommended that the RCMP consider revising Appendix III-11-1 of its Health Service Manual AM II.19 (Occupational Health Services), since we have concerns with access to employee medical records being given to Historian/Researchers and/or the Public Affairs and Information Directorate.
40. Pursuant to paragraph 35(1)(b) of the Act, we asked that the RCMP provide us with notice of any action taken or proposed to be taken to implement our recommendation with respect to the creation of a proper information management agreement or reasons why no such action has been or is proposed to be taken.
41. In correspondence from its Departmental Privacy and Access to Information Coordinator, the RCMP advised that its Occupational Health and Safety Branch has agreed to review and update the MOU with input from VAC. The RCMP also reiterated its commitment to ensuring that it is meeting its obligations to its employees to protect their personal information.
42. However, the RCMP also advised that it would not be making the requested amendments to its Health Service Manual. We do not believe that the RCMP has provided sufficient justification for this decision, so we again urge the RCMP to consider placing further policy-based restrictions on access to its members' sensitive personal information.
43. We will follow-up with the RCMP in one year in order to verify that the MOU has in fact been updated accordingly.