Georges L Dumont public hospital in Moncton, N.B. is shown on Thursday Oct. 8, 2020.Marc Grandmaison/The Canadian Press
New Brunswick’s Vitalité Health Network, which runs the province’s francophone public medical services, has no grounds to refuse to disclose to The Globe and Mail the contracts that it signed with private staffing companies, the province’s information watchdog has ruled.
In a report released Friday, provincial Ombud Marie-France Pelletier said that Vitalité, the health authority which sparked a public uproar after it spent more than $100-million on travel nurses, had failed to provide specific evidence to support its decision to withhold records about those costs.
Ms. Pelletier noted that the health authority chose to deny access to the documents on its own accord, without notifying the companies. Also, she noted that Vitalité continued to withhold the information even though some of it became public when the province’s Auditor-General, Paul Martin, released a report in June.
Mr. Martin’s report raised concerns about the cost of travel nursing, their billing practices and the lack of oversight by health authorities in awarding the contracts. The Auditor-General said Vitalité was responsible for $123-million of the $174-million New Brunswick spent on travel nurses since 2022.
The report also disclosed the hourly rates that four companies – Canadian Health Labs, Magnus, SPI and Goodwill – charged Vitalité for their nurses and orderlies.
The Globe had filed an access to information application in September, 2023, for Vitalité's contracts. The paper was investigating the impact of the increasing reliance by public-health bodies on private, out-of-province nurses, also known as travel nurses.
Vitalité refused to release even partially redacted records. The Globe eventually obtained the Canadian Health Labs contracts through a source.
The Globe appealed Vitalité's decision, arguing that previous findings by courts and information commissioners found that contracts between a private party and a public body should only be withheld in exceptional circumstances, when supported by clear, distinct facts.
Ms. Pelletier concurred, writing in her report that vague assertions of harm are not enough and Vitalité had to justify its refusal with specific reasons. “If I were to accept that objections of such a general nature were sufficient to meet the burden of proof in this case, this would open the door for every contract with a public body to be withheld on the same grounds, which is not in keeping with the level of transparency intended by the legislation,” she wrote.
Vitalité's contracts with three of the staffing companies included confidentiality clauses but Ms. Pelletier said this did not shield them from access to information requirements. “Public bodies cannot exempt themselves from the statutory obligation to be open and transparent about their business dealings simply by including confidentiality clauses in contractual agreements.”
In appealing Vitalité's refusal to release documents, The Globe also cited Section 22(4) of the province’s information act, which says documents can be released if the private interest of the company is clearly outweighed by the public interest.
Vitalité made no submissions to counter that argument. Ms. Pelletier said she made no findings on this point because she had already found that the health authority hadn’t justified withholding the contracts. “Nonetheless, I take this opportunity to remind public bodies of the existence of this provision,” she wrote, because it clearly showed the intent of the law in limiting the denial of access to documents.
Private-sector companies might expect to operate with some degree of privacy but in the public sector, “the default is transparency and public disclosure,” she said.
Vitalité has 20 business days to respond to Ms. Pelletier’s findings. However, New Brunswick is one of the provinces where the right-to-information appeals body cannot force a public institution to release records and only a court judgment would be binding.
A national audit that The Globe conducted last year, asking 253 entities across the country for their freedom of information tracking data, found that New Brunswick was the least likely jurisdiction to provide full access to records, and had the second-longest average response time.
Vitalité and Canadian Health Labs did not respond to requests for comment.