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BC must show public Maximus's health contract, fines: ruling

After years of legal battles, the B.C. government was forced yesterday to reveal the full text of its controversial contract with Maximus BC Health Inc. for the delivery of MSP and PharmaCare services. It also must disclose to the public any fines imposed on Maximus regarding its performance level.

Adjudicator Celia Francis of the B.C. Information and Privacy Commissioner's Office rejected all claims that opening up the records would result in financial harm to the B.C. government. The government and Maximus have 30 days to appeal the rulings to BC Supreme Court. (The onus lies on the government to show why applicants should not have the records, not vice-versa.)

In the first case, Order F10-24, a freedom of information (FOI) request had been filed for the contract by the B.C. Freedom of Information and Privacy Association (FIPA) and the BC Government Employees Union (BCGEU)

The Ministry of Health Services at first argued that the disclosure would also harm the economic interests of Maximus, and might cause risks to law enforcement, but dropped those two claims during mediation.

In November 2004, the Minister of Health Services signed a ten-year contract with Maximus BC Health Inc., Maximus BC Health Benefit Operations Inc., Maximus Canada Inc., and Maximus Inc. to operate and administer most aspects of the Medical Services Plan. The ministry said negotiations with Maximus had been "hard fought", extended over six months and resulted in a "10 year fixed price performance-based service contract with a five year renewal option."

The agreement's purpose was to outsource some functions performed by BCGEU members. The government stressed that the contract was not meant to cover the delivery of medical services by health care professionals, but just to ensure more the effective payment of accounts. It later became the subject of a judicial review: B.C.G.E.U. v. British Columbia (Minister of Health Services).

There were also fears that B.C. customers' data could be easily accessible to American police agencies under the Patriot Act, a prospect the B.C. government denies.

During the inquiry, the ministry and Maximus provided many of their arguments and evidence in camera, which can leave readers only guessing what was claimed.

Francis wrote that their main point was that revealing the information in dispute would harm their negotiating positions in future, the ministry with future alternate service delivery providers and Maximus with existing clients, prospective clients and other "teaming" vendors and subcontractors.

Francis dismissed these claims as speculative and lacking any evidence. The ministry argued that if the details were published, fewer contractors might be willing to bid in future. But Francis countered:

"As FIPA pointed out, the Ministry's concern about disclosure leading to a diminishing pool of contractors who are willing to bid is at odds with Maximus's arguments about the highly competitive nature of the government outsourcing industry. Contractors are well aware that that the government pays in full and on time. In a competitive climate, contractors are in my view more likely to submit better priced, more attractive bids, in order to succeed over their competitors. This can only benefit the government, not harm its financial interest."

The second ruling, Order F10-25 dealt with FOI requests, filed by the BCGEU and separately by myself, for records on fines imposed on Maximus. These records included:

(a) the service level requirements of the contract;

(b) any performance evaluations and performance audits in relation to those services;

(c) any violations of service levels; and

(d) any fines imposed on Maximus under the contract.

Besides claiming potential financial harms, the ministry also cited a risk to law enforcement. It submitted that disclosing the computer host server's name would increase the chance that someone "masquerading as a technician" would be able to obtain unauthorized access to the information system by befriending an employee. Francis called these arguments "speculative and not persuasive."

Although the two rulings seem to auger strongly for transparency, readers must wait until the 30 day deadline for judicial review has passed before they know if they can finally see the records.

Stanley Tromp is a Vancouver-based investigative reporter.

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