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Manual
ACCESS PROCEDURES
This chapter contains the following topics:
Introduction
Right of Access
Confidentiality
Provisions
Excluded
Records
Existing
Information Practices
Obligations
to Disclose
Requests
Under the Act
Processing
Requests
Locating and
Reviewing Records
Granting and
Denying Access
Access to
Own Personal Information
Checklist of
Steps in Processing a Request
- Locating and Reviewing the Records
- Granting or Denying Access to the Records
- Correcting Personal Information
Introduction
This chapter addresses the requirements for providing access to a
record in accordance with the Freedom of Information and Protection of
Privacy Act (FIPPA) or the Municipal Freedom of Information and
Protection of Privacy Act (MFIPPA). The obligation of the head to
disclose a record where there has been no request, the right of access to
general information and the procedures for processing requests for
personal information under FIPPA/MFIPPA are discussed. The particular
requirements that apply to requests for personal information and to
requests for correction of personal information are considered. The
procedures to be followed in notifying the requester of decisions reached
and in notifying third parties are also outlined.
Right of Access
s.10, 47,
63, 65,
69 FIPPA / s.4,
36, 50,
52 MFIPPA
O.Reg.460,
s.2, s.5
FIPPA / O.Reg.823,
s.1, s.5
MFIPPA
The right of access applies to existing records, in whole or in part,
that fall within the custody or control of an institution (for further
information on custody and control see the Introduction ( Chapter
1) of this manual). Certain limitations on access to records exist in
the form of the exemptions, exclusions, confidentiality provisions and the
determination that the request is frivolous or vexatious. There is no
obligation to create a record in response to a request under FIPPA/MFIPPA,
except in certain circumstances involving information maintained on a
computer. Despite these limitations to access, denial of access to records
should be the exception. While an institution may not have a duty to
create a record, it may wish to do so where it is consistent with the
spirit of the Act.
In addition, an individual has a legal right of access to personal
information about him/herself. The right of access to personal information
is subject to the exemptions discussed in the related sections and the
exclusions mentioned below.
The Act does not require that records be translated into the language of
the requester. The French Language Services Act does requires any
communications with the requester including notifications, be made in the
language of the request (French or English) for provincial bodies covered
by this legislation. Some municipalities and local boards offer services
in a number of different languages as a courtesy. When responding to
requests, institutions should follow the policies and practices set by
their respective organization.
Other points to note regarding the right of access:
- FIPPA/MFIPPA apply to any record that exists in the institution
regardless of whether it was created prior to the Act taking effect.
Although different requirements concerning disclosure of records may
have been imposed pursuant to earlier legislation, once FIPPA/MFIPPA
came into force, these records were also subject to the Acts.
- Some federal acts such as the Young Offenders Act and the Criminal
Code have disclosure or non-disclosure provisions that serve to
exclude specified records from FIPPA and MFIPPA.
For more information on the right of access please see Who
Can Make a Request? further on in this chapter.
Severability
s.10(2)
FIPPA / s.4(2) MFIPPA
When information falls within an exemption and can reasonably be severed
from the record, s.10(2) FIPPA / s.4(2) MFIPPA provides the requester with
a right of access to the remainder of the record. The process of severing
is important in processing a request under the Act.
One method of severing is to blank out the exempt information from a
photocopy of the record, using a black marker, and releasing a copy of the
severed photocopy to the requester. This second photocopy step is
necessary because print can be seen through black marker. Alternatively,
removable white tape could be put over the exempt portions of the record
and a photocopy made for release to the requester. A copy should be made
and retained by the institution before the tape is removed.
Generally, the smallest unit of information to be disclosed after severing
is a sentence. But even where only a sentence remains, some information,
such as a name, might be removed and the remainder released.
Severing does not apply where the Act specifically exempts from disclosure
an entire class of records such as a Cabinet agenda or the minutes of a
qualified in-camera meeting. In all cases, the information in a record
must be assessed to determine whether portions are severable.
When information is severed from a record, the notification to the
requester must specify the section(s) of the Act under which access to the
severed information is refused. One way to accomplish this notification is
by inserting the subsection number in the space remaining after the
information has been severed from the record or in the margin. As well,
where information must be severed from a record, it is not feasible to
allow a requester the option of viewing the original.
Confidentiality Provisions
s.67 FIPPA
/ s.53 MFIPPA
The Acts prevail over confidentiality provisions in any other act
unless the other act or FIPPA/MFIPPA specifically provide otherwise.
The confidentiality provisions that prevail over MFIPPA are:
- Municipal Elections Act, R.S.O. 1990, c.M.53, s.105.
This subsection deals with the contents of the ballot box in the
custody of the Clerk.
The confidentiality provisions that prevail over both FIPPA/MFIPPA are:
- Assessment Act, R.S.O. 1990, c.A.31, s.53(1).
This subsection deals with records derived in the course of
determining the value of real property and what assessment should be
made.
The confidentiality provisions that prevail over FIPPA are:
- The additional confidentiality provisions include the Child and
Family Services Act, Colleges Collective Bargaining Act,
Courts of Justice Act, Labour Relations Act, Occupational
Health and Safety Act, Pay Equity Act, Public
Service Act, Securities Act, Commodity Futures Act,
Statistics Act and Vital Statistics Act. Please refer
to s.67 of FIPPA for details.
Excluded Records
s.65 FIPPA
/ s.52 MFIPPA
Certain categories of records are outside the application of FIPPA or
MFIPPA. Access to these records is determined by considerations such as
access provisions in other Acts. In order to make a decision on whether an
exclusionary provision applies, an institution must first determine that
the records in question meet criteria provided in the relevant legislation
or developed by the Information and Privacy Commission (IPC). Even if an
institution makes a determination that a record is excluded from FIPPA/MFIPPA,
it must issue a decision letter to that effect since the decision is still
subject to appeal to the IPC.
FIPPA does not apply to:
- clinical records or treatment related records of psychiatric
facility patients as defined in the Mental Health Act.
- notes prepared by or for a person presiding in a proceeding of a
court of Ontario if those notes are prepared for that person's
personal use in connection with the proceeding.
- anything contained in a judge's performance evaluation under s.5.11
of the Courts of Justice Act or to any information collected
in connection with the evaluation
- a record of the Ontario Judicial Council whether in the possession
of the Judicial Council or of the Attorney General if certain
conditions are present.
FIPPA and MFIPPA do not apply to:
- records in the Archives of Ontario or the municipal archives where
the records were provided by private donors or by an organization
other than institutions defined in the Act.
- most labour relations related records and to much employment-related
information in which the institution has an interest.
The 1995 Labour Relations Act (Bill 7) amended FIPPA and
MFIPPA to exclude most employment-related and labour relations records
from the legislation - see s.65(6) of FIPPA and s.52(3) of MFIPPA. FIPPA/MFIPPA
does not apply to:
Records collected, prepared, maintained or used by or on behalf of an
institution in relation to any of the following:
1. Proceedings or anticipated proceedings before a court, tribunal
or other entity relating to labour relations or to the employment of a
person by the institution.
2. Negotiations or anticipated negotiations relating to labour
relations or to the employment of a person by the institution between
the institution and a person, bargaining agent or party to a
proceeding or an anticipated proceeding.
3. Meetings, consultations, discussions or communications about labour
relations or employment-related matters in which the institution has
an interest.
Nonetheless, under s.65(7)
FIPPA / s.52(4) MFIPPA
the following records are still covered by the Acts:
1. An agreement between an institution and a trade union.
2. An agreement between an institution and one or more employees which
ends a proceeding before a court, tribunal or other entity relating to
labour relations or to employment-related matters.
3. An agreement between an institution and one or more employees
resulting from negotiations about employment-related matters between
the institution and the employee or employees.
4. An expense account submitted by an employee of an institution to
that institution for the purpose of seeking reimbursement for expenses
incurred by the employee in his/her employments orders are released,
this chapter, as well as others, will be updated.
Existing Information Practices
s.63 FIPPA
/ s.50 MFIPPA
A head may provide information without a formal request under the Act.
The Act is not intended to replace the normal process of providing
information. Providing information in response to informal oral or written
inquiries should continue. The Act should only be used by the public in
cases where information is not available through the usual channels.
However, when a request is made in writing under the Act and the
appropriate application fee is paid, the time limits and procedures in the
Act for responding must be followed.
The legislation allows the head of an institution to release information
voluntarily in the absence of a request, or in response to an oral
request, provided that nothing in the Act prohibits the release of that
information. Access to information (except personal information) that was
available by custom or practice immediately before the Act came into place
is preserved. Pre-existing access must be to the public at large not a
select group. Access to records by the parties to an action does not
constitute access by the public at large.
For example:
Section 73 of the Municipal Act requires the clerk to maintain
certain official records of the municipal corporation. S.74 states that
the clerk shall provide access to the records specified in s.73 to any
member of the public, subject to MFIPPA. This means that pre-existing
access continues except in respect of personal information. Therefore, if
a record falls under the pre-existing access provision, a formal request
under the Act is not necessary.
The same provision exists in legislation establishing regional
municipalities, the District Municipality of Muskoka, and the Restructured
County of Oxford.
Personal information cannot be released as part of previously existing
information practices.
Copyright Act
Subsection 27(2)(i) of the federal Copyright Act provides that
the disclosure of a record pursuant to a freedom of information request is
not a violation of copyright. Therefore, this provision means that copies
of architects' plans, drawings or specifications may be provided in
response to a request under FIPPA/ MFIPPA, unless another exemption
applies to the record.
The person to whom the record is provided would still be bound by
copyright. When providing access to architects' records, an institution
should:
- stamp all plans released under the Act with the phrase
"Copyright Act applies to use and reproduction"; and
- ensure that the author is associated by name with the document by
including the title block or other indication of authorship on copies
of documents released.
Freedom of Information and Privacy Coordinators should also note that
their own institution may hold a copyright on works it has created. For
example, records generated by a Ministry may be protected by Crown
Copyright.
Obligations to Disclose
Grave Environmental, Health, or Safety Hazard
s.11
FIPPA / s.5 MFIPPA
The Act requires the head to disclose a record - either to the public
or the persons affected - that reveals a grave environmental, health, or
safety hazard to the public, and where it is in the public interest to do
so. In this provision where the duties and responsibilities belong to the
head alone:
- "grave" means serious, likely to produce great harm or
danger;
- "public interest" includes the interests of the local
community in general and not of any particular individual or group of
individuals; and
- the information must be in record form.
This section overrides every other provision of FIPPA/MFIPPA.
If these conditions are met, and the head has reasonable and probable
grounds to believe that this hazard exists, the record must be disclosed
as soon as possible. There is no requirement that a request under the Act
be made before the head is required to act.
For example:
Where the head possesses records indicating that a beach is unsafe because
of high levels of pollution, he or she is obliged to alert the public to
the danger.
Before disclosing a record, the head must give notice to any person to
whom information in the record relates if it is reasonable to do so in the
circumstances. A "person to whom the information relates "
includes a third party who will be affected by the release. The head must
weigh any harm that the delay in disclosure would create against any
possible unfairness to the person to whom the information in the record
relates. The notice indicates that the head intends to release a record or
part of a record that may affect the interests of the person and a
description of the record or part relating to the person. The notice also
states that the person may make representations forthwith to the head why
the record or part should not be disclosed.
Where notice is given, the person may make representations forthwith to
the head concerning why the records or part should not be disclosed.
"Forthwith" means immediately. Due to the urgency of the
circumstances contemplated, the head is not required to wait for any
prescribed period before disclosing the record or obtaining any
representations. There is no provision for an appeal to the IPC. There a
fewer formal requirements in the notification procedure set out in s.28
FIPPA / s.21 MFIPPA.
For example:
The requirement to give notice could be fulfilled by telephoning the
person to whom the record relates.
This section applies despite any other provision of the Act.
Compelling Public Interest
s.23 FIPPA
/ s.16 MFIPPA
Even where certain exemptions apply to a record, disclosure may still
be required if a compelling public interest in the disclosure of the
records clearly outweighs the purpose of the exemption. This provision
applies to the following exemptions including two of the three mandatory
exemptions for FIPPA and all three mandatory exemptions for MFIPPA:
- Advice or recommendations;
- Relations with governments;
- Economic and other interests;
- Danger to safety or health of an individual; and
This section does not apply to exemptions dealing with records of
closed meetings or Cabinet records, law enforcement, solicitor-client
privilege, or published information. Both the head of the institution and
the IPC can determine if the compelling public interest provision applies
to the disclosure of a record.
The interest in disclosure must be compelling, i.e. strong or
overwhelming. The public interest must also clearly outweigh the purpose
of the exemption. There is a balancing required by weighing the public
interest against the purpose of the exemption. The results of that
balancing test must be clear and definitive.
In considering whether to release a record in the public interest, a head
must first determine whether an exemption applies, that is, whether facts
exist which bring the record within the exemption in question. If the head
determines that one of the mandatory exemptions applies, he/she must then
consider whether the public interest prevails over the interest in
confidentiality. Where a discretionary exemption applies and the head
decides not to exercise his/her discretion in favour of releasing the
record, the head must then consider whether the public interest outweighs
the purpose of the exemption.
If the test is met, the record would be released, although certain
procedural steps have to be followed by the head (but not by the IPC) for
certain exemptions.
For example:
Before information which is exempt under s.15 FIPPA / s.9 MFIPPA
(relations with other governments) can be released by the head in the
public interest, the approval of the Executive Council is required for
FIPPA institutions or the approval of the affected government itself is
required for MFIPPA institutions.
Before information which is exempt as third party information or as
personal information can be released in the public interest, the
notification requirements in s.28 FIPPA / s.21 MFIPPA which apply to those
two exemptions must be followed.
Where a requester urges the application of "compelling public
interest" on an appeal to the IPC, the requester carries the onus of
proof, because of the general legal principle that a party asserting a
right or duty bears the onus of proof. The IPC has stated however, that
this onus cannot be absolute in the case of an appellant who has not had
the benefit of reviewing the requested records before making submissions.
Requests Under the Act
s.24, 25,
26, 48,
66 FIPPA / s.17,
18, 19,
37, 54
MFIPPA
O.Reg.460s.5(2)
FIPPA / O.Reg.823s.5(1)
MFIPPA
What is a Request?
Under the Act, an access request must be made in writing, be
accompanied by the $5.00 application fee and provide sufficient detail to
enable an experienced employee of the institution to identify the record(s)
requested. If an individual is seeking access to his/her own personal
information, the request must also identify the personal information bank
or the location of the personal information being requested. If, after a
thorough search, the institution cannot locate the requested personal
information and the requester cannot provide any credible evidence to
support the existence of records, the head may conclude that the
institution does not have the records.
Sometimes a request might be in the form of a question. For example, a
requester might write, "Does this institution have any information on
tenders?" In this situation it is unlikely that the institution could
determine what information the requester wants. For this reason, requests
in the form of questions are not generally acceptable and should be
clarified with the requester before proceeding to process the request.
There is a prescribed form for access requests, however, a letter that
makes reference to the Act would be considered a request if accompanied by
the required application fee of $5.00. If an institution is in doubt about
whether or not a requester wishes a letter of inquiry to be treated as a
request under the Act, the requester should be contacted and clarification
of the inquiry obtained.
A request for access to hardcopy records must be for records that exist at
the time a request is received. There is no requirement to compile
information from a number of records to create a new hardcopy record in
response to a request.
For example:
A requester might ask to see a copy of an audit report of a planning
board. It might be that an audit report was never prepared by the planning
board. If this is the case the planning board would not be obliged to
prepare one to satisfy the request.
If requested information exists in a group of records it would still be
considered a request despite the fact that the original request was for a
record in a format that did not exist. In this case the institution must
identify and advise the requester of the existence of the related records.
For example:
A list of the names and addresses of all non-profit organizations that
have applied to operate a charity casino in a municipality may not exist.
However, if all non-profit organizations completed an application form in
order to obtain this licence, the application forms taken as a group would
constitute the requested information in record format.
An institution might get a request for access to a record that was
destroyed according to its records retention schedule. In response to a
request for the record, the institution would advise the requester that
the record does not exist.
A request may also be made for access to records that are capable of being
produced from a machine-readable record using the hardware, software and
technical expertise normally used by the institution.
For example:
An institution may generate a report in a certain format from data in a
computer file. A requester under the Act may ask for a different kind of
report using the same computer data sorted or presented differently.
According to s.2 FIPPA / s.1 MFIPPA of the regulations, requests for
machine readable records are subject to the ability of an institution to
produce them without unreasonably affecting its day-to-day operations.
Where the information requested is personal information, the computer
record must be made available in comprehensible form i.e., a record which
merely shows computer codes rather than information intelligible to the
requester would not be in comprehensible form.
Finally, if a formal access request can be better handled by an
institution on an informal basis, the institution should contact the
requester to determine whether he/she is agreeable to this change. An
agreement to request a record on an informal basis generally results in
quicker access to the records but removes the opportunity to appeal the
institution's decisions at a later date.
Clarifying Requests
A request may not sufficiently describe the record sought and therefore
may not be considered a "complete request".
An institution that receives a broadly worded request has three options:
- respond literally to the request, which may involve an institution
wide search for the records;
- request further information from the requester in order to narrow
its search; or
- narrow the search unilaterally, outlining the limits of search to
the requester
Clarifying a request is helpful to both the institution and the
requester. The institution should notify (see notification no.1, in Appendix
IV, Sample Notification Letters) or telephone the requester and offer
assistance in reformulating the request to identify the general class or
type of record and the institution with custody or control of the record.
After a request has been clarified it should be clear to each party what
records are being requested. For an institution this means that an
experienced employee will be able to identify the records sought.
For example:
A requester might ask to see "all the minutes that the Hydro-Electric
Commission has". Does this mean all the board minutes, the committee
minutes, or both? For what year?
In the example above, the requester may be interested in only the board
minutes for a particular date or date range, not all of the minutes that
exist. By clarifying the request the institution could save considerable
time searching through records and preparing them for release. It would
also save the requester considerable costs if a fee is charged.
The records descriptions and descriptions of personal information banks
can be used to help clarify requests.
Who Can Make a Request?
Any person can make a request for access to records. In this instance a
person includes individuals and organizations such as corporations,
partnerships and sole proprietorships. The right of access is not limited
by citizenship or place of residence.
There may be situations where one person represents another individual.
The Act provides that any right or power conferred on an individual by the
Act may be exercised by:
- the personal representative of a deceased individual only if the
exercise of the right or power relates to the administration of the
individual's estate. The personal representative would be the executor
named in a will or if there is no will, the administrator appointed by
a court;
- a guardian for a person if one has been appointed or the person's
attorney under power of attorney, or the Public Guardian and Trustee.
A guardian can be appointed by a court for an individual who is
incapable of managing his/her own affairs. The Public Guardian and
Trustee may become an individual's guardian under the Mental
Health Act or the Substitute Decisions Act;
- the person having lawful custody of a child under the age of
sixteen; or
- a person with the written consent of the individual (that has been
verified).
The rights and powers which an individual may exercise include the
right to make access requests, the right to consent to the collection, use
and disclosure of personal information and the right to request correction
of personal information. Requests made on behalf of an individual by a
person or an organization that has that individual's written consent are
considered to be a personal information request.
Processing Requests
s.24, 25,
26, 28
FIPPA / s.17, 18,
19, 21
MFIPPA
Processing requests is an administrative function that requires
knowledge about the legal requirements of the Acts and the institution's
programs and records management practices.
FIPPA/MFIPPA have specific time restrictions that must be met. The Acts
also require that certain statistical records about requests be provided
to the IPC on an annual basis. The actions and decisions taken with
respect to a request should be documented in case they are later
challenged.
A records management system that includes a filing system and storage,
retrieval and records retention procedures will help an institution
process requests for access to information. It is not acceptable for
requesters to be denied access to records that they would otherwise be
entitled to receive, solely on the basis that the institution's records
management systems are inadequate or deficient.
In order to conform to the request processing time limits set in FIPPA/MFIPPA
it is important to record the date that a request is received and to
devise a method of tracking individual requests. FOI Coordinators often
maintain a descriptive profile of each request that helps them refer back
to previous requests for records and reporting requirements for the IPC. A
carefully considered descriptive profile of requests or of the type of
requests received can also be of internal use when justifying staff and
budgets or when examining procedures for handling requests.
For example:
Keeping records on the numbers and types of access requests received can
help a coordinator determine whether certain records (such as severed
building permits) are being requested frequently enough that they might be
more efficiently provided outside of the formal request process as a
routine disclosure item.
Requests for Continuing Access
Under FIPPA only, a requester may indicate in a request for access to
general records that it shall, if granted, continue to have effect for a
specified period up to two years. Continued access is based on the
existence of the record at the time the request is received by the
institution. This does not apply to a request by an individual for
personal information about him/herself under sections 47 and 48.
If access to the record is granted, the institution provides the person
with a proposed schedule of dates for disclosure. The test for frequency
is one of reasonableness. The schedule indicates why the particular dates
were selected. The schedule also contains a statement that the requester
may ask the IPC to review the schedule.
For example:
A requester may be granted access to a report and request any updates to
the report over the next year. If the report is quarterly, a quarterly
schedule for disclosure would be proposed to the requester.
Continuing access is contemplated for records which are likely to be
produced and/or issued in series. It is not intended to provide ongoing
access to the kind of records of which only one edition is produced. The
discussion to grant access to the original request need not automatically
be applied on the subsequent dates in the schedule.
In dealing with this type of "continuing request", the Act
applies as if a new request were being made on each of the dates in the
schedule therefore an application fee of $5.00 is required for each of the
dates in the schedule. In practical terms, the original request is brought
forward on each of the dates listed in the schedule and processed as if it
were a request made on that day.
If access to the request is denied, there is no obligation to grant
continuing access.
Time Limits
In general, access requests must be responded to within 30 calendar
days from the date a complete request is received. A complete request is
one which has been clarified or one which provides sufficient detail to
allow the institution to understand what information is being requested.
The $5.00 application fee must also have been received. The 30-day time
period starts to run the day the institution receives a complete request.
If a time limit under the Act expires on a Sunday or statutory holiday, it
is extended to the next day which is not a Sunday or statutory holiday. If
the time limit expires on a Saturday, the response date becomes the
preceding Friday.
Where an institution receives a broad request which is subsequently
narrowed by the requester, the 30-day time period begins on the date the
original broad request was received. A broad request is deemed to be
narrowed, not clarified if it originally provided the institution with
sufficient detail regarding the nature of the records being requested and
is now simply being reduced in scope.
For example:
An individual requests the results of a police investigation, including
all correspondence between the police agency and an outside organization
relating to a specific case. The requester later limits his request to one
specific report regarding the case. This request would be considered
narrowed and not clarified. The original request contained sufficient
detail for a staff person to identify the records. In this case, the
30-day time limit would begin on the day the first (broad) request was
received.
An example of a request that needs clarification can be found earlier in
this chapter under the heading Clarifying Requests.
The time limit for responding to a request is automatically extended
where notice is given to a third party.
For example:
An institution that receives an access request where a third party must be
consulted is required to notify that third party within 30 days of
receiving the request. This initial time period allows the institution
time to gather the records, make a determination that a third party must
be consulted and define exactly what the third party must be consulted
about. The third party is allowed 20 days to respond to this notice. Upon
receipt of the third party's response, the institution has a further 10
days to make its final decision about the requested records. Under normal
circumstances then, an institution would have up to 60 days to respond to
an access request that involves third party notification.
Institutions that wish to courier materials to requesters and third
parties should note that courier companies cannot deliver to a post office
box. A street address is required.
All of the above mentioned time limits are maximums; a faster response may
be possible. Under certain circumstances time extensions are also
possible. These circumstances are discussed in detail later in this
chapter.
Receipt of Request and Opening
Request File
The first step an institution should take when a request is received is
to stamp the date on the request. This is important because of statutory
time requirements. Requests arriving at an institution should be routed
quickly to the access and privacy coordinator to ensure that time is not
wasted in the internal mail process. As a courtesy, a notice should be
sent as soon as possible to the requester acknowledging receipt of the
request.
Once the person responsible for dealing with access requests receives the
request, a file should be opened. The file cover can be printed with
information that will help route the file if it must be sent to other
divisions of the institution. If return dates are filled in on the folder
this will help keep people aware of the time deadlines. The file folder
can also serve as a record of the decisions taken with respect to the
file. To help track requests for access to records it is a good idea to
have a different coloured folder for freedom of information and privacy
matters.
A tracking and recording form is useful to record the actions taken to
process a request. It allows the institution to know at a glance how a
request was processed and what decisions were made with respect to the
file. Also, by keeping a recording and tracking form, it is evident what
has to be done to complete the file.
Do You Have the Record?
Detailed explanations of the terms "custody" and
"control" are provided in Chapter 1 of this manual. These
definitions help to establish if an institution has a record subject to
the Act, and hence a responsibility for responding to a request. In
determining "custody" or "control" an institution must
consider all aspects of the creation, maintenance and use of particular
records.
For example:
Records of the public works department of a municipality would be both in
the custody and under the control of the municipality.
Political records belonging to a municipal councilor or elected official
of a board or commission or a Minister's staff may come within the custody
and control of an institution if these records are integrated with other
files held by the institution. When no steps are taken to separate the
maintenance and storage of political records from an institution's records
and an employee of the institution has responsibility for their care,
these records are subject to the Act.
In addition, where a record in the custody or control of an elected
official is communicated to an officer or employee of an institution, the
record may now be considered to be in the custody and control of the
institution.
In the examples above, the Act might apply to the records because the
institution would have either custody or control of the records (or both).
The following questions can be used to determine custody or control. This
is not an exhaustive list of possible considerations:
- was the record created by an officer or employee of
the institution?
- what was the intended use of the record?
- does the institution have possession of the record
either because it has been voluntarily provided by the creator or
pursuant to a mandatory statutory or employment requirement?
- if the institution does not have possession of the
record, is it being held by an officer or employee of the institution
for the purpose of his/her duties as an officer or employee?
- does the institution have a right to possession of
the record?
- does the content of the record relate to the
institution's mandate and functions?
- does the institution have the authority to regulate
the use of the record?
- to what extent has the record been relied upon by the
institution?
- how closely is the record integrated with other
records of the institution?
- does the institution have the authority to dispose of
the record?
For example:
Records of FIPPA institutions at the Archives of Ontario are in the
custody and control of the archives.
Records in the custody of lawyers privately retained by a ministry or
agency may still be in the control of the institution.
If an institution has custody or control of the records and will be
responding to a request for access to records, it would proceed to gather
and review the records to determine what will, or will not, be released.
Institutions may receive requests for records in their custody or control
but which would be more properly handled by another institution. The
institution receiving such a request should confer with the institution
that has the greater interest in the record to determine whether it should
transfer the request or answer the request itself.
Forwarding /
Transferring Requests
Forwarding
s.25(1) FIPPA
/ s.18(2) MFIPPA
In some cases access requests will be sent to an institution that does not
have the responsive record "in its custody" or "under its
control". When such a request is received the institution has an
obligation to:
- determine if another institution has either custody
or control of the record;
- if so, forward the request to that institution along
with the application fee; and
- give written notice to the requester about the new
contact.
The term "forward" is used when an institution
sends the request to what should have been the proper institution.
An institution has 15 calendar days from the date a "complete
request" is received to forward the request. The 30-day time limit
begins when the request is received at the first institution. Due to time
constraints, institutions forwarding a request should immediately
telephone the Freedom of Information Coordinator at the second
institution. This will give the second institution more time to locate
records that are responsive to the request.
The second institution that receives the request has the remainder of the
30-day period to respond. For this reason, it is important to choose a
fast and reliable method of forwarding a request. The time for responding
does not stop running while the request is in transit, however the second
institution may send a notice to an affected third party, require a time
extension, or issue a fee estimate, all of which would change the original
deadline.
An institution that does not have a requested record must make
"reasonable inquiries" to determine if another institution has
the record. Determining what constitutes "reasonable inquiries"
depends on the circumstances.
For example:
A regional municipality might receive a request for information about a
program run by a local municipality in the region. If the region knows
that the matter is a local responsibility it would be reasonable to expect
that the region would contact the local municipality to see if it is
appropriate to forward the request to that local municipality.
Under the Acts a request can be forwarded to an institution covered by
either FIPPA or MFIPPA.
To assist institutions in determining where to forward a request, the Directory
of Institutions lists the institutions covered by both FIPPA and
MFIPPA.
If an institution does not know where to forward a request, it should
inform the requester of this and indicate what steps were taken to make
the inquiries.
Transferring
s.25(2) FIPPA
/ s.18(3) MFIPPA
In some cases more than one institution will have copies of the requested
record(s). An institution might determine that another institution has a
greater interest in the record. In that case the request may be
"transferred" to the second institution along with the
application fee. An institution is under no obligation to transfer the
request, but may do so if it wishes.
Another institution has a greater interest in a record
than the institution that received the request if:
- the record was originally produced in or for that
institution; or
- the record was not originally produced in or for an
institution, the other institution was the first institution to
receive the record or a copy of it.
For example:
Both a municipality and provincial government ministry might have a copy
of an environmental impact study that was originally prepared for the
provincial government. In such a case the municipality might decide to
transfer the request to the provincial ministry.
If an institution believes that the institution that created a record
might exempt all or part of a record from disclosure to the record, the
first institution might consider transferring the request to the second
institution.
When a request is transferred, the same
rules regarding time limits apply as with forwarding a request.
Records of Other Governments
An institution cannot forward or
transfer a request to a federal department. The requester must be
instructed to re-submit the request under the federal Access to
Information Act or the Privacy Act.
For example:
All records of indictable criminal convictions, supported by fingerprints
are held by the RCMP. While Provincial and Municipal police agencies have
access to Criminal History information, an individual requiring an
official copy of their own history must be directed to submit such a
request to the RCMP, supported by their fingerprints. If the request was
made to a Municipal or Provincial police agency, it cannot forward or
transfer such a request. The request must be re-submitted to the RCMP.
Shared Interest in a Request
When it is determined that more than one institution has
records responsive to a request, the institution that received the request
should inform the requester of this fact. The requester should be provided
with the names and addresses of contacts in the other institutions.
Locating and Reviewing Records
s.24(4),
26, 27,
28, 57
FIPPA / s.19, 20,
21, 45 MFIPPA
s.6, 6.1,
7 O.Reg 460 / s.6,
6.1, 7 O.Reg 823
When an access request is received, the institution must
search for the requested records, examine them and decide what will be
released. During the review of the records, an institution may find it
necessary to extend the time period to respond to a request, notify
affected parties and/or issue a fee estimate. In these instances the time
period for processing the request is suspended or extended.
Search for Records
Searches for records responsive to a request should include, where
practicable, enquiries of staff responsible for the issue at the time the
records were created or might have been created.
The following should also be considered when searching for records:
- identify the specific files and data banks that
should be searched;
- ensure that if a requester claims certain records
should exist, they have been searched for in the appropriate files;
and
- establish whether other files and data banks
including e-mails and those of alternative media might contain records
responsive to the request.
An institution should be prepared to verify in an
affidavit, the steps taken to locate a record.
Time Extensions
A head may extend the time limit set out in s.26 FIPPA /
s.19 MFIPPA for a period of time that is reasonable in the circumstances,
where:
- the request is for a large number of records or necessitates a
search through a large number of records and meeting the time limit
would unreasonably interfere with the institution's operations. Note
that an interference with operations posed by meeting the time limit
is not an independent ground on which to base a time extension. An
extension can only be claimed if the request is for a large number of
records or necessitates a search through a large number of records and
meeting the time limit would be an unreasonable interference.
- consultations that cannot reasonably be completed within the time
limit are necessary to comply with the request. Consultations in this
context do not include consultations within an institution, but may
include consultations between or among institutions.
Examples of time extension are:
An institution receives a request for a large number of records that
requires careful review by the individual acquainted with the records
and this individual can only be available on a part-time basis.
A municipality might have to consult with the provincial government to
determine if s.9 of MFIPPA (relations with governments) applies to the
requested records.
An institution should consider all of the potential
factors that may contribute to the need for the length of a time
extension. The time limit in section 26 FIPPA / s.19 MFIPPA can only be
extended once. Further, when assessing the length of time of the
extension, the institution must make its decision regarding time required
within the initial 30-day time period prescribed in section 26 FIPPA /
s.19 MFIPPA.
All requests for extension of time must be reasonable. In order to
ascertain the reasonableness of the request for an extension of time, the
institution must explain why the consultation will take the amount of time
indicated.
There are two legitimate courses of action that an institution might
consider when compliance with the time limit set out in the Act places an
excessive strain on resources. They are as follows:
- negotiate with the requester who sends in numerous
requests as to whether he or she would consent to waive the 30-day
limit for each of the requests in favour of a response within 30 days
in respect of certain priority requests and a longer response time in
respect of others.
- if at all possible, allocate the institution's
resources in such a way that, on an emergency basis, additional staff
can be assigned to assist those routinely working on freedom of
information requests.
The institution's Freedom of Information Coordinator
could work on a one-to-one basis with the requester to work out a
compromise. Where possible, the coordinator may offer the requester access
to the originals, a few at a time, and the requester could then determine
which records he or she would like copied.
An institution should consider each request separately and decide on a
case-by-case basis, whether a request's volume justifies an extension.
If the head extends the time limit, the head must give the requester a
written notice that sets out:
- the length of the extension;
- the reason for the extension; and
- the fact that the requester can ask the IPC to review
the decision to extend the time period.
Appendix IV contains a sample of time extension notice.
A head may wish to send such a notice once a deposit for the fee estimate
is received see Order #M-1071.
Notices to Affected Third Parties
Records sometimes contain information concerning a person other than the
requester. In this instance, a person may be another individual or a
corporation, partnership or other legal entity considered to be a person.
Before granting access to a record affecting a third party, a head must
give written notice to the third party to whom the information relates.
The information is considered to affect a third party if:
- the head has reason to believe that the record
contains third party information referred to in s.17(1) FIPPA /
s.10(1) MFIPPA; or
- the record contains personal information that the
head has reason to believe might, if released, constitute an
unjustified invasion of personal privacy (s.21(1)(f) FIPPA /s.14(1)(f)
MFIPPA).
A notice to an affected party gives that party an
opportunity to make representations about the proposed disclosure of
records that affect him/her.
If the head intends to release the records, then the affected party
must be given a notice. The notice must contain:
- a statement that the head intends to disclose a record or part of a
record that may affect the interests of the person or organization;
- a description of the contents of the record or the part that relates
to the third party; and
- a statement that the person may, within 20 days after the notice is
given, make representations to the head as to why the record in whole
or in part should not be released.
The notice must be given within the initial 30-day period after a
complete request is received or, if there has been an extension of time,
within the extended time period.
The third party has 20 days after the notice is given to make
representations to the head. Representations are to be in writing unless
the head permits them to be made orally. After the representations are
made (or after the 20-day period for representations has elapsed), the
head must decide within 10 days whether to disclose the record.
If affected third parties have been notified, this will delay the
processing of a request. Therefore, the head must notify the requester of
the delay. It is advisable to do this at the same time that the affected
third party is notified. The notice to the requester must state that the:
- disclosure of the record or part may affect the interests of a third
party;
- third party has an opportunity to make representations concerning
the disclosure; and
- head will decide within 30 days if the record or part will be
released.
If a head decides to release a record in whole or in part that affects
a third party and has heard representations from the third party, or the
time period for making representations has expired, the head must notify
the requester and the affected third party that:
- the person to whom the information relates may appeal the decision
to the IPC within 30 days; and
- the requester will be given access to the record or part unless an
appeal is filed within the 30 days after the notice is given.
The notice should be very clear that the requester will be given access
to the record or part unless the affected third party appeals to the IPC
within the 30-day time limit.
Appendix IV contains
sample notification letters to third parties and to requesters.
Fee Estimates/Interim Notices
In processing a request, certain costs for time, materials and services
will be incurred. Immediately upon receipt of a request, the costs
generated in processing a request for access to general records and, to a
limited extent, the costs for processing a request for personal
information start to accumulate. If it appears that the costs of
processing the request will be over $25.00, the requester must be given a
fee estimate before the head grants access to the records. If the cost
estimate is $100.00 or more, the head may require the requester to pay a
deposit equal to 50 per cent of the estimate before taking any further
steps to respond to the request.
For example:
An institution receives a request for records that it knows will take more
than 3 hours to locate, prepare and copy (this will be roughly equivalent
to fees of $100.00 or more). The institution's first step might be to
prepare a cost estimate for processing the request. This cost estimate
would likely involve processing a representative sample of the records and
estimating probable costs, exemptions applied and expected decisions
regarding disclosure. As the request will cost over $25.00 to process, the
institution is required to send a copy of this fee estimate to the
requester. In addition, since the expected fee will be over $100.00, the
institution is entitled to ask for a deposit of 50% of expected costs in
the letter providing a fee estimate. The institution is not required to
complete any further work in responding to the request until it receives
the 50% deposit from the requester. If the cost of processing the request
was less than $100.00, the institution would be required to issue a fee
estimate and continue processing the request without receiving a deposit.
The head is required to notify the requester of his/her decision regarding
access to the requested records within 30 days of receiving the request.
Therefore, both the fee estimate notice and a notice of decision on access
must be issued within the 30-day period (unless there has been a time
extension or a third party notice issued). There are 3 distinct situations
with respect to fee estimate notices and final decisions:
- where the access request will cost $25.00 or less to process, no fee
estimate is required.
- where the number of records is not large or unduly expensive to
retrieve (i.e. over $25.00 but under $100.00 to process), the
institution should review the records and provide the requester with
both a fee estimate and a decision about disclosure within the 30-day
period. The institution is not allowed to stop processing the request
once a fee estimate has been sent but may determine the best time to
send the fee estimate in the request processing cycle.
- where the processing costs for a request will be over $100.00, the
institution should follow the example provided above where a detailed
fee estimate is developed. Work on processing the request stops until
the requester provides a 50% deposit.
In the latter case, the head may wish to provide the requester with a
notice combining the fee estimate with an interim decision. An interim
decision lets the requester know that certain exemptions may apply to the
records, although no final determination has been made. Since this is not
a final decision, it is not binding on the institution and is not subject
to appeal. However, the fee estimate may be appealed.
Both the interim decision and fee estimate are determined using one of
the following methods:
- consulting with an employee of the institution who is familiar with
the type and contents of the records; or
- basing the interim decision and fee estimate on a representative (as
opposed to haphazard) sampling of the records.
In all cases, the fee estimate should be based on an examination of the
records and should provide the requester with as much information as
possible about the costs that will be incurred in processing the request.
The estimate should also indicate that the requester may ask for a fee
waiver.
Once the interim notice and fee estimate are sent the 30 day clock
stops until the requester indicates willingness to proceed with the
request (an institution may request a 50% fee deposit as an indication of
the requester's willingness). A time
extension notice can then be sent if necessary after a deposit is
received.
See Chapter 6 (Fees)
for information about chargeable costs, the calculation of fees, deposits
and fee waivers.
Granting and Denying Access
s.10, 14(3),
21(5), 24,
26, 28,
29, 30
FIPPA / s.4, 8(3),
14(5)17, 19,
21, 22,
23 MFIPPA
s.3 O.Reg.460
FIPPA / s.2 O.Reg.823
MFIPPA
Once the access decision has been made, written notice of the decision
must be provided to the requester and any affected third parties. The
notice must be given within the 30-day time period (or within the period
of extended time, if any).
However, if third party notices have been given, the notice of a decision
concerning disclosure cannot be given until:
- a response from a third party has been received; or
- after the 20-day period in which a third party can respond to a
third party notice has elapsed.
If a head does not give the requester notice of his/her decision within
the 30 days (or within the time frames extended under the extension of
time, or third party notice procedures) the head is deemed to have refused
access to the record. The requester may then appeal to the IPC.
Access to Original and Copying
Requesters may ask to view all or part of an original record, rather
than being provided with a copy. The head can provide access to original
materials if the circumstances make this possible. For instance, it may
not be reasonable to provide access to original records if their security
would be compromised. An archives, for example, might have records with
historical value in original and microfiche form. Access to the microfiche
might only be possible because of the age and condition of the original
records.
When access is to be granted to an original record, the institution must
ensure security of that record. In other words, the institution must then
take reasonable steps to ensure that the record is not defaced, changed,
destroyed or stolen as a result of granting access. An institution may
wish, for example, to have an employee present when access to the record
is provided to the requester. In general, the nature of security measures
taken should be determined by the nature of the original record requested.
When an institution has several sites such as regional or field
offices, the head has the discretion to determine the site where access
will be granted to the record.
Factors to consider in exercising this discretion include:
- whether security of the record can be maintained while transporting
the record or at a site other than where the record is located;
- whether access at another site would result in undue inconvenience
or expense, or would compromise the operation of the institution;
- whether the record is in active use and needed on-site;
- whether there are legal requirements for maintaining the record
on-site; and
- the volume, size and fragility of the records.
In exercising this discretion, the head must assess the particular
facts of each case before a decision is made.
A requester can ask for copies of all or part of an original record
he/she has examined. The requester must be given a copy of what is wanted,
unless it would not be reasonable to reproduce the record or part because
of its length or nature.
If a photocopy is made of the original severed record, the requester is
charged for the cost of photocopying.
Granting Access to Records in Whole
If a record is to be released in its entirety, a requester should be
informed of this in a decision letter that outlines any fees that he/she
will be required to pay. A copy of the record being provided may be
enclosed with the letter if fees are not an issue. If access is to be
provided to an original record rather than a copy, the letter should
inform the requester of the time and place where the record can be seen.
The institution should confirm the identity of individuals requesting
personal information before any personal information is released. Further
information about verifying an individual's identity is discussed later in
this chapter.
Denying Access to Records or Parts of Records
When access to a record is refused or is only partially granted in the
case of a "severed" record, the requester must be notified of
the decision and the sections of the Act which justify that decision. The
head is required to provide a requester with information about the
circumstances which formed the basis for the head's decision to deny
access. In the end the requester should be in the position to make an
informed decision as to whether or not to seek a review of the head's
decision. The requester must also be notified when it is determined that
the record sought does not exist,
The notification must contain the following information:
- a statement that the record does not exist; or
- where the record exists, the specific provision of the Act under
which access is refused and the reason the provision applies;
- the name and position of the person responsible for the decision;
and
- that the requester may appeal the decision to the Commissioner.
The head is required to provide the requester with a clear description
of the records responding to the request and a specific reference to the
exemption being used. The decision letter should be accompanied by a
detailed index of records at issue which describes the contents and
subject matter of the records. In the end, the requester should be in the
position to make a reasonably informed decision on whether to seek a
review of the head's decision by the Commissioner.
An institution must describe the withheld record(s) by providing at
least a summary of the categories of the requested records in enough
detail to sufficiently allow a requester to make a reasonably informed
decision whether or not to appeal. Care should be taken not to disclose
any names when describing the withheld record(s).
Appendix IV (Sample
Notification Letters) contains a sample notice denying access to records.
Refusing to Confirm or Deny the
Existence of a Record
An institution may refuse to confirm or deny the existence of a record
if the record relates to law enforcement, or if disclosure of the records
would constitute an unjustified invasion of personal privacy.
For example:
A social services department that acknowledges that a record about a
particular individual exists may invade that individual's personal privacy
because the acknowledgment would be a strong indication that the person
was, or is, in receipt of social assistance.
The notice of refusal to the requester must state:
- that the head refuses to confirm or deny the existence of the
record;
- the provision of the Act (law enforcement or unjustified invasion of
personal privacy) on which the refusal is based;
- the name and office of the person responsible for making the
decision; and
- that the requester may appeal the decision to the IPC.
A police agency that acknowledges that a record exists about a
particular individual may compromise an investigation before a decision is
made to lay a charge.
Access to Own Personal Information
s.47, 48
FIPPA / s.36, 37
MFIPPA
FIPPA/MFIPPA provide an individual with a right of access to his/her
own personal information, regardless of whether the information is held in
a personal information bank or in general records.
A request by an individual must meet the criteria for a "complete
request". It must be in writing, must be accompanied by the $5.00
application fee and must identify the personal information bank where the
record is held or the location of the personal information. The
institution's Directory of Records will assist the requester in
locating the specific personal information bank that contains his/her
information.
Identification Required for Access
When releasing personal information, an institution must verify and
satisfy itself with the requester's identity and ensure that the records
are safely transmitted. Verifying an identity can be done in several ways,
for example:
- asking for photo identification, e.g. driver's license or a
passport;
- spelling of names, address, telephone number, signature,
handwriting, etc., should be reviewed and compared with the
information that an institution may have on file. Any discrepancies
should trigger further inquiry; or
- if the requester wishes to examine the personal information in
person, proper identification (such as a drivers licence) should be
examined before access to the file is granted. Since not everyone has
a driver's licence, however, the institution should be prepared to
accept other appropriate documentation.
If the requester wishes to have a copy of the personal information
mailed to him or her, the institution should verify the requester's
identity by telephone before forwarding the requested records. This
verification could include asking the individual to submit photocopies of
his/her identification. Since some individuals may have problems with
physical access, requiring personal attendance to view personal
information should not be the standard method of verifying identity.
Comprehensible Form
Personal information must be provided to the individual in a
comprehensible form and in a manner that indicates the general terms and
conditions under which the information is stored and used.
Personal information may be stored in such a manner that it is not readily
understood by the individual. For instance, information produced in coded
form is meaningless without providing the key to the code. Information
provided in response to a request under the Act should be decoded, or the
code or key provided, so the information can be understood by the
individual.
Correction of Personal Information
Every person who is given access to his/her own information has the
right to request correction of the information if he/she believes that it
contains errors or omissions.
The right of correction applies only to personal information to which an
individual is given access and for which the individual has paid the $5.00
application fee. The meaning of the word "correction"
incorporates three elements:
- the information at issue must be personal information; and
- the information must be inexact, incomplete or ambiguous; and
- the IPC will not order a correction that is a substitution of
opinion.
Opinion material obtained from persons other than the individual
requesting the correction would not ordinarily be changed. A statement of
disagreement is appropriate. The Access/Correction Request form may serve
as a statement of disagreement.
An opinion expressed by the individual which has been inaccurately
recorded would, in all likelihood, be corrected. However, an opinion which
was accurately recorded at the time it was collected but has changed
subsequently would not likely be altered.
When the request for correction has been received, the head must determine
whether the information submitted for correction can be verified. In some
cases, documentary proof should be requested, especially if the
information impacts on an individual's financial status or eligibility for
a benefit.
If the requested correction of personal information is not made, the
individual should be informed of the reasons the correction was not made
and that he/she has the right to:
- appeal the decision to the IPC;
- require that a statement of disagreement be attached to the
information; or
- have any person or body to whom the personal information was
disclosed within the last twelve months notified of the correction or
statement of disagreement.
If the correction is made, the requester should be notified with a copy
of the corrected record. The requester should also be notified of the
right to have any person to whom the personal information was disclosed
during the past 12 months notified of the correction.
The Act does not specify the time period within which a response must be
provided to a request for correction. The general 30-day period is
considered reasonable.
Checklist for Processing a Request
A Request is Received
1. Is the request in writing, does it mention FIPPA/MFIPPA and does it
include the $5.00 application fee?
2. Does it provide sufficient detail to enable an experienced employee to
identify the requested record(s)?
- If not, assist the requester to rewrite the request.
3. Date-stamp the request, open a file and prepare a tracking and
recording form.
Do the Requested Records Exist?
1. Do the records exist or are they capable of being reproduced from a
machine-readable record?
- If not, notify the requester that the records do not exist.
2. Does your institution have custody or control of the records?
- If not, make reasonable inquiries to determine where to forward the
request, and forward the request within 15 days of receipt. Notify the
requester if the request is forwarded.
If you do not know where to forward the request, notify the requester
that the records do not exist and that the requester can appeal to the IPC.
3. If your institution and another institution have copies of the
records, determine which institution has a greater interest in the record
and if appropriate, transfer the request to the other institution within
15 days of receiving the request. Notify the requester of the transfer.
Locating and Reviewing the Records
1. Gather the records or a sample of the records and review them.
2. Will some of the exemptions apply?
3. Do you need more time to process the request?
4. Do the records affect the interests of third parties?
5. Will there be a cost for processing the request?
6. Is a time extension required? If so, notify the requester.
7. Does it appear that you will be granting access to records that affect
the interests of a third party? If so, send notices and give affected
third parties an opportunity to make representations about the disclosure
of records that affect them. This will affect the deadline for responding
to the request.
8. If the fee will be over $25.00, the requester must be given a fee
estimate. If over $100.00 a 50% deposit may be requested.
Processing the Request
1. Retrieve the records.
2. Determine what exemptions apply.
3. Determine if the override provisions apply.
4. If required, sever exempt material from the records.
5. Determine what the final fee will be and if the fees will be waived.
Granting or Denying Access to the Records
1. If access to a record or part of a record is granted, determine the
method of access (copy or original).
2. If access is granted, give the requester notice regarding access.
3. If an affected third party is involved, give notice regarding access to
third party and requester.
Note that the affected third party has 30 days in which to appeal your
access decision to the IPC. Access is not granted to the record until the
30 days have expired and an appeal has not been filed.
4. Collect fee where applicable, and provide record.
OR
Give the requester a notice of refusal if:
- the record does not exist;
- all or part of the record is exempt from disclosure; or
- the institution is refusing to confirm or deny the existence of
certain records.
Correcting Personal Information
1. If an individual requests the correction of personal information,
verify the information to be corrected, correct the personal information
or permit a statement of disagreement to be filed.
2. If requested, notify recent users of the personal information of the
correction or statement of disagreement.
Complete the File
1. Document the request and all actions taken.
2. Close the file, unless an appeal is commenced.
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OCIPO 