ss.(1)

• The Commission has the jurisdiction to consider the relevancy of the records to the request submitted by the appellant. (Ministry of the Attorney General v. Anita Fineberg, Inquiry Officer, and John Doe, June 30, 1994, Ontario Divisional Court.)

• The Commission has jurisdiction to determine a Charter challenge to the provisions of the Act. However, the Commission has ruled that it must be convinced by a clear and compelling argument that the sections of the Act which the appellant seeks to impugn are inconsistent with the Charter. (Orders #P-106, P-254, M-341, M-352, P-743, M-380)

• The Commission has the jurisdiction to consider whether the decision letter issued in response to a request is in compliance with the Act. (Order #P-717)

• When an institution does not provide notice to a third party under the Act, the third party cannot appeal the institution's decision to the Commissioner. (Order #P-295)

• Where records subject to an appeal had been adjudicated upon by the Commission in a previous order with respect to the same appellants, the Commission will consider that the records fall outside of the scope of the appeal. (Order #P-666)

• This provision in the Act permits the requester to appeal any decision of a head even when full access is granted by the institution. (Order #P-954)

• The Commission's right to review an institution's decision with respect to granting or denying access under FIPPA is independent of any right the requester might have in relation to an action under the Construction Lien Act or the Rules of Civil Procedure. (Order #M-832)

ss.(2)

• The 30 day time period in section 50(2) begins to run on the date the individual receives the institution's decision, and ends on the date the person sends an appeal to the Information and Privacy Commissioner/Ontario. Where an affected person was absent from the address where a decision was mailed, the decision is considered to have been "received" on the date that it was delivered to that address, and not on the date that the affected person returned from his absence and obtained the decision. In other words, the Ministry should be considered to have discharged its notice obligations once its letter had been delivered to the relevant address. (Order # PO-1916)



• The requirement that a requester appeal within 30 days after notice is given by an institution is to be interpreted liberally in favour of access to the process. Where there is no prejudice to the institution, appeals launched after the 30-day period may be allowed. Each case will be considered on its own facts. (Orders #P-155, P-293, M-430, P-970, P-1314)

• This appeal was within the 30-day period because the requester's "narrowed" request, made after the response of the institution to its original request, was considered by the Commission to be a new request. Therefore, the 30-day time period commenced from the response to that request, and not the earlier one. (Order #M-156)

• However, where the head, as here, failed in the notification letter to advise the requester that the appeal must be filed within 30 days, then the institution cannot rely on the strict adherence to the time limit. As a result, the Commission held that the appeal which was filed 45 days late could proceed. (Order #M-430). The requester is precluded from proceeding with the appeal because of the seven month delay in filing the appeal. (Order #M-939)

• Where an institution did not inform a requester of his right to appeal within 30 days, the institution cannot then argue that the appeal should not be heard because it was initiated after the 30 day period had expired. (Order #P-856)

• An appellant's right to appeal whether additional responsive records existed was preserved beyond the usual 30 day period in circumstances where the requester first received copies of records during an appeal inquiry and could only have made a judgement during the inquiry stage as to whether further documents ought to exist. (Order #P-971)

• An appeal is considered to be "made" within the 30 day time limit when the requester has mailed the appeal within 30 days of receiving the institution's decision.(Order #M-775)

• The ability of a requester to raise new issues during an appeal, or even after the original appeal has been decided, will be determined by fairness, the possibility of prejudice to either party and administrative efficiency and convenience. (Order #P-1362)

ss.(3)

• The Ontario Divisional Court ruled that decisions of the head as to relevancy may be appealed to the Commission and that where the Commission considers relevancy of records it must notify the parties to the appeal and provide them with the opportunity to make submissions according s.52(13) [FIPPA] \ s.41(13) [MFIPPA]. (Ministry of the Attorney General v. Anita Fineberg, Inquiry Officer, and John Doe, June 30, 1994, Ont. Div. Ct.)

• In this case, involving a large number of affected parties, notice was provided by placing an advertisement in a local newspaper on two separate days. (Order #M-30)

• The procedural scheme established by the Act clearly contemplates that the government speaks with one voice with respect to requests. Thus one government institution cannot claim that certain records do not exist because they are held by another ministry. As well, the Commission need not notify other institutions that may have an interest in the records in the appeal. The legislation contains various provisions which contemplate that the institution may canvass other institutions if necessary, eg. transfer the request to the institution which has custody and control, transfer the request to the institution with the greater interest in the record, consult with other institutions before making an access decision (this consultation is facilitated by means of a time extension). (Order #P-902)