General

• Institutions that send correspondence by courier should be aware that couriers cannot deliver to a post office box. (Order #P-79)

• Proper notice under this provision has not been given where the decision made is not in accordance with the institution's delegation of authority. As a result, the institution is deemed under s.29(4) [FIPPA] \ s.22(4) [MFIPPA] to have refused access to the records at issue in the appeal. (Order #P-333)

• It was not appropriate for a police force to wait until the Police Complaints Commission (PCC) had completed its investigation and returned the file to the police before it responded to a request for access to the records. The police force ought to either obtain the records from the PCC and respond to the request within the time frame of the legislation or transfer the request to the PCC, as the institution with the greater interest. (Order #M-365)

• Where an institution does not respond within the 30 days envisaged by this provision, the Commission may order the institution to respond within a shorter period of time without recourse to a time extension. In some cases, the Commission ordered the institution to issue a decision letter within time periods of 7 to 14 days. (Orders #P-751, P-951, M-1155)

• The 30-day time period for responding to a request begins on the date the request is originally received, even though a subsequent phone call narrowed the request. This "narrowing" does not amount to a "clarification" of the request. (Order #P-214)

• Institutions are obliged to issue a notice of decision under the Act regardless of whether; the institution considers the records excluded from the Act; the fee was refused when the request form was delivered to the institution; and, the staff communicate outside the Act that the request will not be processed. (Order #M-1155)

Records Index

• The notice must contain a clear general description of the records responding to the request and a reference to the specific section of the Act being used to exempt each record. The provision of a list of the records that are responsive to a request is consistent with this requirement. The list can consecutively number the records and describe them as "document," "memo," "letter," "notes," etc. (Orders #P-81, P-154)

• Where large numbers of records are involved, it would be of assistance to requesters for the institution to identify the particular pages or paragraphs that appear most directly responsive to the request. (Order #P-337)

Interim Fee Estimate Authorized

• The interim fee estimate was approved in this case where an affidavit established that search time would take 60.2 hours and cost $1,746. (Order #P-700)

Interim Notices

• For complex requests, a non-binding "interim" s.26 [FIPPA] \ s.19 [MFIPPA] notice may accompany a fee estimate. This would apply where the requested records are large in number or unduly expensive to produce or where complex consultations are necessary. Familiarity with the scope of the request can be achieved by the head seeking the advice of an employee of the institution who is familiar with the type and contents of the records or the head can base the estimate on a representative, not random, sample of the records. Where this process applies a time extension under s.27 [FIPPA] \ s.20 [MFIPPA] should not be undertaken. If the institution claims a time extension, it must review all the requested records and issue a final decision. If an institution is experiencing a problem because a record is unduly expensive to produce for inspection by a head in making a decision, it may not claim a time extension and then issue an interim decision. The interim notice should indicate whether exemptions will likely be applied and should also include a breakdown of the estimated fees, and a clear statement as to how the estimate was calculated. As in Order #M-171, an affidavit to this effect may be provided by the institution. A requester must be provided with sufficient information to make an informed decision regarding payment of fees, and the head must take whatever steps that are necessary to ensure that the fees estimate is based on a reasonable understanding of the costs involved in providing access. Where the record is not large or unduly expensive to produce, and where no complex consultations are necessary, then this procedure does not apply and the institution must provide the requester with both a detailed fees estimate and a decision regarding access within 30 calendar days. (Orders #P-81, P-184, P-185, P-243, P-406, P-425, M-103, P-502, M-171, M-218, P-778, M-555, M-556, M-557, P-938, P-1259)

• Until an institution issues a decision on whether access will or will not be granted to the requested records, it cannot provide the requester with a fee estimate. In most cases, the decision will be a final decision; in unusual cases in which the records are unduly expensive to retrieve for inspection, the institution should issue an interim decision according to Order #81. This latter situation did not apply here because all the relevant records were located in two offices. Section 57(3) [FIPPA] \ section 45(3) [MFIPPA] (dealing with the requirement to provide a fee estimate) and section 8(1) of Regulation 460 [FIPPA] \ Regulation 823 [MFIPPA] (dealing with the fee waiver) presuppose that an institution has made a decision on whether or not access will be granted when a fee estimate is issued. A requester should know whether access will be received upon payment of the fee estimate. (Orders #P-502, M-218, M-376)

• When an institution makes an interim decision as set out in (Order #P-81), the 30-day clock stops when the fee estimate is given and restarts when the deposit is received. Only then can the institution claim a time extension to complete the request.(Order #M-1071)

• It is not appropriate for an institution to issue a fee estimate for locating a record in circumstances where it cannot reasonably expect to find a record responsive to the request. (Order #M-172)

• The Commission affirmed Order 81 and held that the threshold established by Order 81 for interim access decisions, and the guidelines it sets out for the contents of such decisions, strike a reasonable and appropriate balance between the requirements imposed by this section and the fee estimate provisions of the Act and Regulation. (Order #M-555)

• The fact that an institution has received a second request for the same information is not a proper consideration in determining whether to issue an interim or final decision. There is nothing to preclude an institution from passing the cost of the search to the second requester should the first requester choose not to proceed with the request and/or not pay any allowable fees. (Order #M-376)

• The interim notice accompanying a fee estimate should indicate whether access will be granted and should contain enough information about the records to allow a requester to decide whether to proceed with the request. (Order #P-1005)

• When an institution makes an interim decision as set out in (Order #81), the 30-day clock stops when the fee estimate is given and restarts when the deposit is received. Only then can the institution claim a time extension to complete the request.(Order #M-1071)

Interim Fee Estimate not Authorized

• The Commission considered that unless that the records are unduly expensive to retrieve for inspection by the head, e.g. Order #P-81, then the records must be reviewed and a final decision issued. Therefore where 200 letters were responsive to the request, an interim decision was not appropriate. The fact that a search may not produce any records responsive to a request is not a proper consideration in issuing a decision. (Orders #P-696, M-376)

• The "interim" decision option as envisaged by Order #P-81 is not available where the only basis for the procedure is that the estimated search time to locate a record is 5 hours. (Order #M-103)

• Despite the "interim notice" procedure outlined in the Order, the institution, in this case, because of the delays, was ordered to retrieve all occupational health and safety records involved in the request under appeal and to make a final decision on access within 60 days. (Order #P-81)

• The "interim" decision option applies where the records are unduly expensive to produce for inspection by the head in making a decision. Where all the records have been obtained, then this procedure cannot apply. Institutions cannot charge a fee under the Act for reviewing the records. (Order #M-218)

• The Commission noted that the interim fee estimate procedure did not apply where the records were already located at the time the fee estimate was issued and the search time was said to be 4 hours. (Order #P-716)

• The Commission found that the "interim decision" option did not apply where the type of information on which an access decision is to be made is not voluminous. Thus, where the request was for a list of names of Ontario physicians and the total number of laboratory tests ordered by each physician and where only three distinct categories of information were responsive to the request, the interim fee estimate procedure did not apply. This was so even though the number of physicians may be voluminous and that compiling the record necessitates the creation of a computer program. (Order #P-778)

• Records are not "unduly expensive to produce" where computerized records are standardized and the ministry has established guidelines to explain how the records should be prepared for disclosure under the Act. (Order #P-890)