Chapter 11: Appeals Process

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Introduction

Individuals may request a review of access decisions under the legislation to the IPC. This review is referred to as an appeal.

This chapter provides an overview of the appeals process, general requirements, and timelines. The IPC is responsible for developing and managing the appeals process and procedures. Institutions are required to follow the IPC’s Code of Procedures and related practice directions.

It is important for Coordinators to work with Legal Counsel to establish roles and responsibilities in the appeals process.

Reasons for an Appeal

FIPPA s. 50 / MFIPPA s. 39

The legislation provides a right of appeal to requesters and affected parties impacted by a request. The legal term for an individual who makes an appeal is an appellant. The IPC keeps the identity of the appellant confidential in public orders regarding the appeal. The IPC does disclose the identity of the appellant to the institution involved in the appeal.

An appeal can be triggered by different events and can occur at different stages of the request process. Fees, time extensions, and deemed refusals may all be appealed during the request process.

An individual does not have appeal rights when a request for information is handled informally or outside of the formal access request process.

The main reasons for an appeal include:

Access denied: Requester disagrees with an institution’s decision to deny access to some or all of the information requested. This includes information that was determined to be subject to an exemption and information that was determined to be subject to an exclusion.

Affected party: Affected party objects to an institution’s decision to provide access to personal or proprietary information of the affected party.

Correction denied: Requester disagrees with an institution’s decision to deny correction of personal information.

Deemed refusal: Requester did not receive any response from the institution within 30 days of the institution’s receipt of the request.

Failure to disclose: Requester received decision letter from the institution; however, the institution failed to disclose records after fee payment.

Fees and fee waiver: Requester disagrees with the amount of fees being charged or disagrees with the institution’s decision not to grant a fee waiver.

Reasonable search: Requester disagrees with an institution’s decision regarding the existence of records and believes efforts to locate records were inadequate.

Time extension: Requester disagrees with an institution’s decision to extend the time limit to respond to a request.

IPC Powers

The IPC manages the appeal process and coordinates the exchange of information, relevant to each stage of the appeal. Coordinators may deal with a number of individuals at the IPC on an appeal.

The scope and complexity of an appeal and the number of parties involved in an appeal are some of the factors the IPC takes into account in determining an approach to resolution. The IPC can depart from its Code of Procedure where it is appropriate, and as long as it does not prejudice the parties.

The IPC has authority to obtain and examine records. The IPC never releases records at issue to a requester or an affected party and is prohibited from disclosing information provided to the IPC as part of the appeal process.

Institutions do not waive solicitor-client privilege if legal advice is contained in a particular record. The same reasoning applies to confidentiality provisions contained in other statutes.

The IPC decides matters under appeal by issuing an order in the form of a report. An IPC order is binding on all parties to the appeal. An order is not subject to appeal; however it may be subject to a request for reconsideration or a judicial review. These processes will be discussed later in the chapter.

The IPC has broad order-making powers to:

Uphold or overturn an institution’s decisions related to the application of exclusions, exemptions, and fees;
Order an institution exercise or re-exercise its discretion;
Order an institution to conduct further searches for records;
Order an institution to produce a record where certain machine readable records are requested;
Issue an interim order on specific issues or records and defer a final decision; and
Order an institution to produce the records to the IPC.

The IPC notifies all parties to the appeal that an order has been issued and sends a copy of the order to the parties.

Stages of Appeal

The appeal process has four stages:

Initiating an Appeal: A requester files an application for an appeal.
Intake: The IPC screens appeals received and decides whether it can be resolved informally, dismissed or moved toward mediation or adjudication. Orders can be issued at this stage for “deemed refusals” and “failure to disclose” appeals.
Mediation: A mediator contacts the parties, investigates, attempts to effect settlement, and issues a report.
Adjudication: An adjudicator contacts the parties, begins the inquiry, receives representations, and issues an order.

Timelines

The appeal process does not have an official start and end date. The length of time required for an appeal depends on the complexity of the issues within the appeal, number of parties involved, and how many appeals the IPC is managing.

However, within the appeal process there are specific time limits by which institutions must respond to the IPC. The table below summarizes the time limits and further discussion of the steps follows in the chapter.

Appeal timelines table
Appeal Stage	Action	Timeline
Initiating an appeal	Requester or affected party files an appeal	Requester or affected party must file an appeal within 30 days of date of institution’s decision
Intake stage	Institution receives notice of appeal	The institution must identify affected parties for IPC as soon as possible upon receipt of notice of appeal
Intake stage	Institution receives Confirmation of Appeal from IPC	The institution has eight days to respond to the IPC and provide requested documentation
Intake stage	IPC may grant a time extension for providing records to IPC	When a time extension is granted, the institution has up to fourteen additional days to provide requested documentation
Mediation stage	IPC sends Notice of Mediation	The Notice of Mediation sets out a 35 day deadline for an institution to claim any additional discretionary exemptions
Mediation stage	IPC initiates mediation stage of appeal	The mediation process is generally four months; however, timelines can be flexible depending on the circumstances
Adjudication stage	IPC sends Notice of Inquiry	Institutions must submit representations within 21 days of receipt of Notice of Inquiry
Adjudication stage	IPC may grant extension of time in providing representations	Any request for a time extension exceeding one week must be made in writing, including an explanation for the delay, to the adjudicator
Adjudication stage	Institution may issue a new decision letter to appellant	The new decision letter must be sent to the appellant within 35 days of the Notice of Inquiry unless IPC specifies a date. The adjudicator should be copied on the letter
Adjudication stage	Institution may raise constitutional questions	Institutions may raise constitutional questions within 35 days after receiving the Notice of Inquiry
Adjudication stage	Appeal abandoned if IPC does not get a response from the appellant	The IPC will determine an appeal is abandoned after 21 days have passed where the IPC has been unable to contact or receive a response from the appellant
Adjudication stage	Comply with order – no affected parties	Institutions must comply with an order by the date that is specified in the order
Adjudication stage	Comply with Order – affected parties	Institutions must comply with an order within 35 days, but no earlier than 30 days of date of order, unless another date is specified in the order
Adjudication stage	Retain appeal records	60 days from date of order
Review of IPC Order	Application for a reconsideration order	Within 21 days of date of order or before the first specified date or time period in the order
Review of IPC Order	Application for Judicial Review	Within 30 days of date of order
Review of IPC Order	Institution notifies IPC to return records	As soon as possible, by the end of the 3-month or 1-year period

Initiating an Appeal

Institutions are required to provide requesters information about their appeal rights and the appeal process. This information should be provided to the requester in fee estimate letters, time extension letters and decision letters.

An appellant must file a written notice with the IPC Registrar within 30 days of receiving a decision. The legislation allows counsel or an agent to appeal on behalf of an appellant with appropriate authorization.

The IPC asks the appellant to complete an appeal form including the following information:

The appellant’s contact information (name, address, telephone);
The institution’s name and file number assigned; and
A brief explanation of the reason for the appeal.

In addition, the IPC requires a copy of the institution’s decision letter and a copy of the original request. Where the appellant does not have a copy of the original request, the institution can provide this to the IPC.

The appellant is responsible for paying appeal fees to the IPC. However, there are no appeal fees for an affected party appealing an institution’s decision, or for subsequent appeals arising from a decision.

Appeal fees cannot be waived.

The appeal fee for decisions (exemptions and exclusions applied), deemed refusals, fees, fee waivers and reasonableness of search for access requests for general records is $25.00.

The appeal fee for decisions (exemptions and exclusions applied), deemed refusals, fees, fee waivers and reasonableness of search for access requests for one’s own personal information is $10.00.

Intake Stage

During the intake stage, the IPC screens an appeal and either dismisses, resolves, or streams the appeal to a later stage of the process. Intake analysts have delegated authority to screen out files where:

The matter, on its face, is not within the IPC’s jurisdiction; or
The matter falls within the IPC’s jurisdiction, but the matter, on its face, is one that the IPC believes should not proceed through the appeal process.

Institutions may receive the following notices from the IPC during the intake stage:

Notice of Appeal: This notice informs the institution that an appeal has been filed and may also notify any affected parties that an appeal has been filed.

Confirmation of Appeal: This notice informs institutions that an appeal has been accepted. The letter will include the name of the requester, the appeal file number, the IPC contact, and IPC requirements.

Notice of Inquiry: The IPC may send a Notice of Inquiry during the intake stage for appeals regarding deemed refusals or where institutions have issued decisions, but have failed to disclose the records to the requester. This notice informs all parties about the nature of the appeal and requests representations from parties in the appeal.

During the intake stage, institutions may be contacted by the IPC to provide additional information including information about affected persons.

Mediation Stage

A mediator will contact the parties to investigate the circumstances of an appeal and attempts to effect a settlement of the issues.

The mediator can review the records and provide an opinion to the parties on the likely outcome of the appeal at adjudication. The mediator can convene conference calls with the parties to canvass the issues, or engage in shuttle mediation by speaking separately with the appellant and the institution.

Mediators may request additional information from institutions, including information for the purpose of notifying affected persons. Institutions can issue revised decisions during mediation to disclose additional records to an appellant.

Most appeals are resolved through mediation. Even if an appeal is not settled in its entirety, mediation can result in streamlining the issues that need to be adjudicated.

The mediator issues a report to the parties. If the mediation is not successful in settling the dispute, the appeal moves on to the adjudication stage.

Adjudication

The first step in the adjudication stage usually begins when an adjudicator sends a Notice of Inquiry to the parties bearing the initial onus. This notice informs parties to an appeal of the issues to be decided in the appeal and requests representations on those issues. The adjudicator also summarizes the background of the appeal and describes the records at issue. Once representations are received from the first party, the adjudicator usually sends a Notice of Inquiry to the other party or parties inviting representations.

Making Representations

Representations are arguments or evidence presented to the adjudicator to persuade them to resolve the appeal in a particular way. The legislation places the burden of proof on different parties depending on the issue:

The appellant when claiming that a record should to exist; and when claiming a public interest override in favour of disclosure;
The institution when claiming an exemption or exclusion applies; and
The affected party when claiming harms and arguing against disclosure.

When preparing representation an institution should consider:

The type of appeal;
Address each of the issues raised by the adjudicator;
Provide detailed evidence and argument;
Organize representations logically;
Demonstrate the applicability of exemptions;
Reference the most recent orders and decisions where possible;
Indicate which information in the representations the institution regards as confidential and should be withheld from other parties and the reasons why;
Provide copies of reference materials;
Provide an index of appeal documents; and
Use plain language.

Written or Oral Submissions

The IPC’s general practice is to conduct inquiries through written submissions. It may require an institution to make certain submissions by affidavit. Any party to the appeal may request an opportunity to make oral submissions, and an oral hearing may be held if the IPC believes that it would aid in an exploration of the issues.

In an inquiry, the IPC has the power to summon and examine witnesses under oath. Anything said or any document or thing produced during an inquiry, whether oral or written is privileged to the same extent as it would be before a court.

An inquiry must be conducted in a manner that protects the confidentiality of the records pending the IPC’s decision. It is not a public hearing, witnesses are generally not cross-examined, and testimony may not be used in other proceedings.

Sharing Representations

An adjudicator may share representations with other parties to the appeal, unless there are overriding confidentiality concerns. The adjudicator will consider if:

Disclosure would reveal the substance of the record;
The information would be exempt if it was in a record;
The information was communicated to the IPC in confidence with the understanding that it would not be disclosed; and
- Confidentiality is essential to maintaining relations with the IPC;
- The relation is one which in the opinion of the community should be maintained; and
- The injury to the relation would outweigh the benefit correctly determining the appeal.

Although a party is not entitled to access an opposing party’s submissions, the IPC may decide to share submissions, in part or in whole, with other parties. The IPC gives parties the opportunity to object to the sharing of their submissions before deciding whether or not to share them. A party may also request a copy of the submission directly from the institution.

Affidavit and Other Evidence

An affidavit is a statement of facts which is sworn to (or affirmed) before an officer
who has authority to administer an oath. Affidavits are a common method of providing evidence. The IPC may request an affidavit be provided in mediation or adjudication. An affidavit may be shared with consent of the parties.

Institutions may decide that an affidavit is an effective way of providing evidence regarding searches, existence of records and contentious issues.

Affidavit evidence should be:

Detailed enough for the parties to understand the contents; and
Confined to facts within the personal knowledge of the person swearing.

It is a criminal offence under the Criminal Code to swear a false affidavit.

Claiming Additional Exemptions

The IPC may allow an institution to claim additional discretionary exemptions at the inquiry stage. This requires that an institution send a new decision letter to the appellant. In these circumstances, further representations may need to be submitted by the parties.

The adjudicator may at any stage request supplementary representations by the parties.

Providing Records to the IPC

Once an appeal is received by the IPC, institutions will be required to:

Notify the IPC if the records are voluminous (e.g., 500 pages plus and more than three exemptions);
Provide relevant records;
Advise the IPC if the institution plans to claim additional discretionary exemptions; and
Notify the IPC if records are to be returned to the institution.

Only the documents in the appeal should be sent to the IPC. The relevant documents include:

A copy of the original request and its file number;
A copy of the head’s decision letter;
Any correspondence related to the request or the decision making process;
An index of the records under appeal and the exemptions applied to the records;
A severed copy of the records under appeal where severances have been made, and
Unsevered copy of the records.

The severed and unsevered copies of records do not need to be provided to the IPC in appeals related to fee estimates, time extensions or reasonableness of search.

Institutions should provide the IPC with a well-organized, legible, and complete package of records. The IPC may agree to on-site inspection of records in special circumstances such as highly voluminous requests or fragile records.

Records should be sent securely to the IPC. Records should be sent by bonded courier or may be delivered by an employee of the institution.

On Hold and Abandoned Appeals

The IPC may place an appeal “on hold” for later resolution. The IPC may treat an appeal as abandoned if an appellant has not responded to the IPC within a time period specified by the IPC.

Reconsideration of Orders

A reconsideration of an order is not an appeal of an order on its merits. An adjudicator may reconsider a decision where there is:

A fundamental defect in the adjudication process;
Some other jurisdictional defect in the decision; or
A clerical error, accidental error or omission or other similar error in the decision.

A request for reconsideration must comply with the criteria above and be made within 21 days or before the first specified date or time period in the order. An institution must still comply with the terms of an order unless otherwise directed by the IPC. A request for reconsideration does not preclude a party from seeking other legal remedies for review that may be available.

Constitutional Issues

A constitutional question may be raised by one of the parties in an appeal or by the IPC for one of the parties to address. A constitutional question raises issues relating to:

The constitutional validity or applicability of the legislation, a regulation or a by-law, or a rule of common law; or
A claim for a remedy under the Canadian Charter of Rights and Freedoms.

The IPC must be served notice of a constitutional question using the IPC’s form along with written submissions.

Judicial Review

Judicial review proceedings are governed by the Judicial Review Procedure Act. The criteria for a judicial review by a party to an appeal include where it is alleged that the IPC’s decision was patently unreasonable or otherwise outside the IPC’s jurisdiction.

Applications for judicial review are made to the Divisional Court and must be made within 30 days of the order or reconsideration order. Appellants and institutions may file judicial review applications. If an appellant or institution does not file an application for judicial review within 30 days, the institution must comply with the IPC’s order.