Chapter 6: Managing the Request Process

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Introduction

The legislation establishes administrative procedures for responding to requests for information received under the legislation.

This chapter focuses on how institutions manage the request process. This includes information about requesters, types of requests, timelines for response, and step by step guidance on processing requests.

Within the step by step instruction is information related to various requirements under the legislation including calculation of fees, providing notice to affected parties and more.

Providing Assistance to Requesters

In addition to striving to achieve legal compliance with the legislation, institutions should provide quality customer service. Coordinators should assist requesters by:

Providing information about the request process;
Communicating in a professional and timely manner; and
Accommodating special needs of the requester.

Coordinators also assist requesters by providing guidance on reformulating unclear requests through clarification. Clarifying requests is discussed later in this chapter.

All written communications with a requester and third parties should:

Use plain language;
Be responsive to all issues in the request;
Explain decisions and reasons fully; and
Specify timelines for response and relevant dates.

Template letters are available Appendix 4. These templates include details that are required under the legislation to include within certain communications and can be modified by the institution based on the context of the request. Consult the table of contents for a list of the available template letters.

Requesters

The legislation allows any person to make a request for access to records. A requester is not required to identify or justify the purpose for making a request. The right of access is not limited by citizenship or place of residence.

A person making a request can be an individual or organization. There may be situations where one person represents another individual or an organization.

The legislation allows an individual’s rights or powers to be exercised by:

A person with the written consent of the individual that has been verified (e.g., agent, lawyer).
A person having lawful custody of a child under the age of sixteen. A person with lawful custody of a child does not have absolute access rights. The exercise of any rights should be in the best interests of child and not for the personal objectives of the custodian.
A guardian for an individual appointed by a court, or the individual’s attorney under power of attorney, or the Public Guardian and Trustee; under the Mental Health Act or Substitute Decisions Act.
A personal representative of a deceased individual (e.g., executor named in a will, administrator or trustee appointed by a court) only if the exercise of the power relates to the administration of the individual’s estate.

In instances where individuals or agents request information on behalf of another individual, institutions will require official documentation to prove an individual or agent has the authority to act on behalf of another individual or organization. Examples of official documentation an institution could accept include:

Signed consent form accompanied with a photocopy of government issued photo identification;
A notarized will identifying the name of the executor to an estate;
A signed affidavit or court order identifying an individual as the guardian to an individual under the age of 16; or
A notarized Power of Attorney.

Maintaining Confidentiality of a Requester

When responding to a request for general records, Coordinators should safeguard all information about a requester’s identity and the request should remain confidential.

When an individual makes a personal information request, the Coordinator may identify the requester on a need to know basis to other employees in order to locate the records or make decisions on access.

Anyone should be entitled to make a request without being unnecessarily identified and without fear of negative repercussions.

A disclosure of the identity of a requester could be an invasion of an individual’s privacy. These confidentiality requirements also apply to privacy complaints and investigations.

Request Requirements

FIPPA s. 24, s. 48, s. 63 / MFIPPA s. 17, s. 37, s. 50

A request can be made in two ways: formally under the legislation and informally. A request can be made for a general record or for a personal information record.

To be considered a complete request, a formal request for a general or a personal information record must be:

In writing;
Include sufficient detail for an experienced employee to identify the record;
Indicate the request is being made under the legislation; and
Include a $5.00 application fee.

An individual requesting their personal information must also provide valid identification to the institution prior to receipt of a record. Valid identification may include government issued photo identification such as drivers licence or passport. In instances where no official identification is available, the institution should work with the requester to verify their identity. The application fee cannot be waived.

Informal Requests

The legislation does not prevent giving access to information in the absence of a formal request. This is referred to as an informal request. Informal requests are not processed under the legislation and allow an institution to handle a request verbally.

To handle a request informally, the individual and institution must be in agreement to do so because the individual loses the opportunity to appeal an institution’s decision on access. Any agreement to manage the request informally should be confirmed in writing with the requester.

Types of Requests

The legislation distinguishes between two primary types of requests:

General record requests where the requester is asking for general information or information that includes personal information about someone else; and
Personal information requests where the requester, or authorized representative, is asking for information about himself or herself.

This chapter will primarily address general record requests. Many of the provisions outlined in this chapter apply to both general record requests and personal information requests. For example, time limits for response, clarifying requests, and fee estimates. Where differences exist, such as allowable fees, it will be noted. For additional information and considerations for requests for personal information, see Chapter 8: Personal Information and Correction Requests.

Formal requests can vary in size, scope and complexity. The sections below will examine:

Routine requests;
Contentious requests;
Voluminous requests;
Continuing access requests; and
Frivolous and Vexatious requests.

These request types are not specified within the legislation; however, categorizing requests in this manner may be helpful to institutions depending on the volume and complexity of requests received by an institution.

Routine

A routine request is straightforward in terms of search, content, disclosure, and decision-making. Routine request are requests where responsive records are:

On a related topic; and
Frequently requested.

Contentious

A contentious request is a request where the records contain sensitive information that is likely to be widely disseminated.

There are two criteria that define contentious requests:

The request is submitted by an individual or organization that may disseminate requested information publicly.
The records contain sensitive information. In this case, the source of the request is not a determining factor.

The IPC does not oppose the institutions establishing a contentious issues management process as long as the process:

Does not impact decision making on access;
Does not lengthen timelines on response; and
Does not reveal the identity of the requester.

For more information on issues management activities, see Chapter 3: Coordinator Roles and Responsibilities.

Voluminous

A voluminous request generally involves one or more of the following:

A search through a large number of records;
The review of a large number of responsive records;
The coordination of searches through multiple program areas in the institution;
Potential interference with the institution’s operations; or
The requirement of additional staff or resources to complete the request.

A time extension may be required when responding to a voluminous request if the request cannot be responded to within the 30 day limit.

Some strategies for working with the requester and managing resources may include:

Contacting the requester and discussing options to narrow the scope of the request to reduce the time required to respond and fees potentially;
Working with the requester to agree on a compromise such as offering the requester an opportunity to review the original records and only select those they wish to have copies of;
Establishing an agreement to a staged release of records based on the requester’s priorities; or
Allocating additional staff resources to work on the request on an ad-hoc or emergency basis.

Requests for Continued Access

s. 24 / s. 17

A requester can make a request and seek continuing access to the records for a period of up to two years. This is called continued access and applies to general records only (i.e., not personal information). The record must exist at the time of the request.

Continuing access is not intended for records that are only produced once; but rather is intended for records that are produced on an ongoing basis. Continued access is not appropriate where:

Access is denied in full to the initial request; and
There is no possibility that future records will come into existence during the two-year continuing access period.

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.

An institution provides the requester with a proposed schedule of dates for disclosure based on a reasonableness test. For example, if a requested record is produced on a quarterly basis, it would be reasonable to establish a quarterly schedule. The institution should provide the requester with a rationale for the schedule. The proposed schedule can be appealed to the IPC.

In practical terms, the original request is brought forward on each of the dates listed in the schedule and processed as if it were made on that day. The $5.00 application fee is required for each of the schedule dates. For convenience, it is advisable for institutions to request payment for application fees in a lump sum. For example, the institution may request $25.00 for five requests. Requesters may also pay individual $5.00 application fees according to the schedule if that is their preferred option.

Each time the request is scheduled to begin, the request needs to be reviewed and an access decision needs to be made. An institution cannot rely on its first decision for subsequent requests in the schedule. As a result, different requests under a single continuing access request may have different decisions on access, depending on the responsive records in each request and what exemptions or exclusions may apply to the records.

Frivolous and Vexatious

FIPPA s. 10 (1) (b), s. 24 (1.1), s. 27.1, Reg. 460 (5.1) / MFIPPA s. 4 (1) (b), s. 17 (1.1), s. 20.1, Reg. 823 (5.1)

An institution may issue a decision letter to a requester indicating that no records will be provided if the institution views the request as frivolous or vexatious. Under the regulations, a frivolous or vexatious request occurs where:

The request is part of a pattern of conduct that amounts to an abuse of the right of access;
The requester is acting in bad faith or for a purpose other than access; or
Responding to the request wou
ld interfere with the operations of the institution.

According to the IPC, examples of abuse of process include using the request process to:

Make repeated requests for the same or similar information;
Make an excessive number of requests;
Resubmit a request previously abandoned;
Make requests that are excessively broad in scope or unusually detailed;
Coincide with the timing of other events (e.g., court proceedings); or
Accomplish an objective unrelated to the process (e.g., harass, cause a nuisance, break or burden the system).

A requester’s pattern of conduct could unreasonably interfere with the operations of an institution which means that responding to the requests would obstruct or hinder the effectiveness of the institution’s activities. The concept of interference is relative to the circumstances and size of the institution.

A request is also frivolous and vexatious when it is made in bad faith. This implies the conscious doing of wrong for a dishonest purpose (e.g., creating a nuisance). It also suggests a state of mind which views the request process with contempt. Bad faith is not simply bad judgment or negligence.

According to the IPC, factors to consider in establishing bad faith include:

Nature and quality of interaction between the requester and the institution’s staff; and
There is an escalation of a requester’s uncooperative and harassing behaviour.

The institution is required to inform the requester why the request is denied and the reasons it is considered frivolous and vexatious.

The requester may appeal a determination that the request is frivolous or vexatious. In the case of such an appeal the institution is required to present evidence that the request is frivolous or vexatious and the IPC will determine if the institution’s decision is reasonable.

Time Limits

FIPPA s. 25 (1) (2), s. 26, s. 27, s. 28 / MFIPPA s. 18 (2) (3), s. 19, s. 20, s. 21

In the context of processing a request, there are time frames for responding to requesters. This is commonly referred to as the “clock.”

In general, access requests must be completed within 30 calendar day (i.e., counting Monday to Sunday). The 30 day time limit starts the day the institution receives a complete request and finishes the day the final decision letter is sent.

If the time limit expires on a Saturday, Sunday or statutory holiday, the timeframe for responding to the requester is extended to the next business day of the institution.

The day the request is received is considered “day zero.” When calculating the due date for a request, Coordinators should count 30 days starting from the next calendar day from when a request was received.

If a request is received after business hours, the request is generally considered to have been received the next business day. For example, if a request is submitted at 9:00 p.m. to an office that closes at 5:00 p.m., the request will be considered received by the institution the following day.

If an institution fails to issue a decision letter to a requester within the 30 day time limit (if no time extension or notice to affected person is issued), it may be considered a deemed refusal. A requester can appeal a deemed refusal to the IPC.

The table below gives more information on how the 30 day clock is impacted by different administrative actions:

Table outlines time limits for different actions.

Issue	Clock Status	Time Limit to Issue Decision	Considerations
Forwarding a request	Clock does not stop.	30 days	Must be done within 15 days. It is advisable to transfer a request as soon as possible. Clock does not stop while the request is in transit.
Transferring a request	Clock does not stop.	30 days	Must be done within 15 days of receipt. It is advisable to transfer a request as soon as possible. Clock does not stop while the request is in transit.
Clarifying a request	Clock does not start until request is clarified with requester.	30 days from date of clarification	Request must be considered complete in order for the clock to begin. If clarification is required, this indicates the requester has not provided enough information for an experienced employee to locate a record.
Fee Estimate /Interim Decision – Fee Estimate Under $100	Clock does not stop.	30 days in total unless a time extension is applied	Requesters are not required to pay a deposit on requests where fees are estimated to be below $100.
Fee Estimate /Interim Decision – Fee Estimate Over $100	Clock stops on the date the fee estimate is issued. Clock starts again on the date the fee deposit is received. The institution has the remaining days to complete.	30 days in total unless a time extension is taken	Requesters are required to pay a 50% deposit when fees for processing the request are over $100. When deposit is paid, the clock starts again. For example, if the institution issues a letter on day 10, the institution has 20 days left to issue a final decision after receiving the deposit.
Notice to Affected Person /Third Party Notice	Clock continues, but request due date changes to be 30 days after the notice is issued.	30 days from issuing the notice to affected parties decision must be issued to requester. Within these 30 days, the affected parties have 20 days to respond to the institution. The institution then has 10 days to issue a decision.	The institution must issue the notice to affected person within 30 days of receipt of the request or within extended time limits.
Time Extensions	Clock continues.	The timeline for the extension is not defined in the legislation but is based on a reasonable assessment of time required.	Only one time extension allowed and must be taken within 30 days of receipt of the request. Time extensions can only be granted for volume of search or responsive records; or where consultation with an outside individual is required to complete the request. If a Notice to Affected Person is issued during a time extension, this may further extend the timelines for response.

Administrative Actions to Support Processing Requests

In order to process requests under the legislation, there are various administrative tasks and processes that may need to be completed depending on the circumstances.

The legislation provides rules around these administrative actions. Many of these processes involve communicating with the requester who has the right to appeal to the IPC on the validity of applying some of these provisions.

The sub-sections below provide details on when these actions are required or allowed and what information institutions must communicate to the requester.

Clarifying Requests

FIPPA 24 (2) / MFIPPA 17 (2)

When a request is not clear and experienced employees of an institution do not have sufficient information to begin a search for responsive records, Coordinators are obligated to clarify the request. The legislation requires requesters to provide sufficient detail to enable an experienced employee to identify the requested records.

It is necessary to clarify a request when:

The request is open-ended, vague or unclear;
The record is not described sufficiently to allow an experienced employee to undertake a search; or
The request comes in the form of a question where no record exists to satisfy the answer.

Clarifying a request can be done by phone or in writing. The institution and requester can work together to reformulate the request. See Appendix 4.3 for a template letter acknowledging a request that requires clarification.

Coordinators can also help the requester better understand what types of records may be responsive to a request and what is, and is not, available in response to the request. In addition, it may be helpful for Coordinators to explain processing fees and provide an estimate of costs, if possible. Potential fees are often an important consideration for a requester. With this knowledge, the requester can then decide how to proceed.

After a request has been clarified it should be clear to both the institution and the requester what records are being requested. For an institution this means that an experienced employee will be able to identify the requested records. This agreement should be confirmed in writing and essentially makes the request complete.

Narrowing a Request

Sometimes a request will capture a significant number of records, because of the way it has been worded (e.g., “access to any and all records”) or due to an extensive timeframe for the record search. A broad request can still provide sufficient detail to identify records. Narrowing a request refers to reducing the scope of the request (e.g., reducing a request for three years of records to one year of records).

Narrowing the scope of a broad request is not considered to be a clarification if the original request provided the institution with sufficient detail about the requested record, and narrowing simply reduces the scope.

Coordinators should work collaboratively with requesters to narrow the scope of a request. Alternatively, the Coordinator can choose to interpret the request literally, which may involve an institution-wide search for records and potential time extensions.

Forwarding a Request

FIPPA s. 25 (1) / MFIPPA s. 18 (2)

Sometimes a requester may send a request to the wrong institution. When a request is received and the institution does not have custody or control of the records, the legislation requires that:

Inquiries be made to determine if another institution has responsive records; and
The first institution should forward the request to the institution, as required.

Requests can only be forwarded between any provincial or municipal institutions.

Coordinators should take action to forward the request within 15 days or as soon as possible, because the clock will continue to run while the request is being forwarded.

Coordinators should take the following steps:

Make reasonable inquiries to determine if another institution has the record if unknown;
Notify or telephone the Coordinator at the correct institution;
Forward the request and determine whether to:
- Return the application fee payment (e.g.: cheque or money order) to the requester and advise them to submit a new payment to the correct payee;
- Forward the application fee to the new institution (if the institutions are the same payee); or
- Deposit the application fee on behalf of the receiving institution (if the institutions are the same payee); and
Notify the requester about the new contact in writing.

See Appendix 4.5 for a sample template letter to use when notifying a requester a request has been forwarded or transferred to another institution. See Appendix 4.6 for a sample template letter to use notifying another institution when a request has been transferred or forwarded.

Transferring a Request

FIPPA s. 25 (2) (3) / MFIPPA s. 18 (2) (4)

An institution may receive a request that applies to records that another institution may have a greater interest in, and it would be more appropriate that the other institution make a decision on access. Often this occurs when institutions share records for the purpose of seeking advice or when partnering or collaborating on a project.

The legislation allows a request and a record to be transferred to any provincial or municipal institution. The purpose of transferring a request is to ensure the institution best positioned to make an access decision may do so.

Transferring a request and record is discretionary which means an institution is not obligated to do so. Institutions may also transfer a request in part, where each institution issues decision letters on the records that the institutions have a greater interest in disclosure.

An institution has a greater interest in a record than another institution if:

The record was originally produced in or for that institution; or
The other institution was the first institution to receive the record or a copy of it.

Coordinators should take action to transfer the request within 15 days or as soon as possible, because the clock continues to run while the request is being transferred.

Coordinators should take the following steps:

Make reasonable inquiries to determine if another institution has a greater interest in the record if unknown;
Notify or telephone the Coordinator at the institution;
Transfer the request and determine whether to:
- Return the application fee payment (e.g.: cheque or money order) to the requester and advise them to submit a new payment to the correct payee;
- Transfer the application fee to the new institution (if the institutions are the same payee); or
- Deposit the application fee on behalf of the receiving institution (if the institutions are the same payee); and
Notify the requester about the new contact in writing.

Records of Other Governments

Institutions can only forward or transfer requests to provincial or municipal institutions. Therefore institutions cannot forward or transfer a request to the federal government, another provincial government, a municipality outside of Ontario or the government of another country.

When a requester sends a request to the wrong government, Coordinators should return the request and application fee to the requester and advise them to re-submit the request to the appropriate government.

Time Extensions

FIPPA s. 27/ MFIPPA s. 20

The legislation allows a time extension where it is unreasonable to complete the request within the 30 day time limit. The legislation is not explicit about the amount of allowable time so any time extension must be reasonable and justifiable.

A Coordinator should consider all of the potential factors that may contribute to the need for a specific length of a time extension. A decision to extend the time limit must be made within the 30 day limit and the requester must be given notice. Only one time extension can be taken for each request. It is generally best practice to inform the requester of the time extension concurrently with informing the requester of estimated fees (if any). More information on fee estimates is provided later in this chapter.

Time extensions are permitted for two reasons:

When requests that have a high volume of records to search or review and the extensive search and review would unreasonably interfere with operations; and
When requests require consultations with a person or organization outside the institution in order to complete the request.

The IPC encourages institutions to work with requesters to find practical solutions when several requests are submitted at one time. Time extensions for a request are determined on a case by case basis.

Factors generally found to support a time extension include:

A large number of records requiring careful review; and
A substantial amount of time required to prepare records at a critical operational time requiring staff to attend to their duties.

Factors generally found not to support a time extension include:

The number of requests being processed at any given time;
Staff vacation;
The expense of producing a record where the expense is caused by the size, number or physical location of records.

Written notice must be provided to the requester when a time extension is being applied. The institution must communicate to the requester:

The reason for the time extension;
The length of the time extension and the new due date for the request; and
That the requester has the right to request the IPC review the decision by the institution to apply the time extension.

See Appendix 4.7 for a template letter notifying a requester of a time extension.

Consultations

FIPPA s. 27/ MFIPPA s. 20

The purpose of consultations is generally to obtain information or advice that can inform decision-making. Consultations are different from providing notices to affected persons as discussed below.

Consultations may be required with a person (e.g., past employee) or organization (e.g., other governments) outside the institution who may have knowledge of the records at issue. For example, a consultation may be required when responsive records to a request include records prepared by another government body and subject matter expertise is required in order to make a decision on access.

The legislation allows a time extension for consultations that is reasonable in the circumstances.

Notice to Affected Person (Third Party Notice)

FIPPA s. 28 / MFIPPA s. 21

Some records responsive to a request may contain information concerning an affected party such as a person other than the requester. In these instances, institutions are required to provide notice to the affected persons. Further, the institution must provide a notice of delay to the requester regarding the notice process.

A notice to an affected party must be given if the institution has reason to believe that the records might contain third party information or contain personal information of an identifiable individual, and the institution is contemplating disclosing the records.

The notice process gives the affected party an opportunity to make representations about the proposed disclosure of records that affect them. The threshold for determining if the third party information exemption applies to a record is very low. This means that institutions should carry out the notice to affected persons process whenever the responsive records “might” be subject to this exemption. Observing a low threshold ensures procedural fairness and reduces the risk that exempted information is disclosed in error.

A notice to the affected person must include the following information:

A statement that the institution intends to release a record or part of a record that may affect the interests of the person or organization;
The contents of the record or the part that relates to the affected person;
That the affected person must make representations in writing as to why the record in whole or in part should not be released; and
That the affected person has 20 days after the notice is given to reply.

There is discretion to hear representations verbally if necessary.

Affected persons may not be familiar with the legislation. It is advisable that Coordinator’s contact affected to explain the notice process and answer any questions they may have. It is also helpful to provide:

Copies of the relevant sections of the legislation; and
An actual copy of the record where practical.

After the 20 day time limit for response from the affected party has elapsed, institutions have 10 days to issue a decision on access to the requester.

Institution’s may agree or disagree with the response from an affected person. The affected person has a right to appeal the institution’s decision on the access request regardless of whether the institution agrees or disagrees with their response. As a result, the institution must hold the records until the appeal period of 30 days has past. Once the appeal period has passed, the Coordinator should confirm with the IPC that no appeal has been received before releasing the records to the requester (subject to payment of fees).

If records capture information that is not subject to notice, institutions should disclose the records which are not subject to the notice at the time the decision letter is issued (subject to the application of other exemptions and exclusions and payment of fees).

The timelines stated above may be extended if the 20 day response time presents a “barrier” as defined by the Accessibility for Ontarians with Disabilities Act. Under that legislation, a barrier means “anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice.”

When timelines are extended for the notice to affected due to accessibility reasons, the requester should be informed of the new expected due date for response.

See Appendix 4.10 for a template letter providing notice to affected person for third party information. See Appendix 4.11 for a template letter providing notice to affected person for personal privacy. Finally, see Appendix 4.12 for a template letter to provide notice to requester of delay where a third party’s interests are impacted.

Fees

FIPPA s. 57, Reg. 460 (5.2), (6), (6.1) / MFIPPA s. 45, Reg. 823 (5.2), (6), (6.1)

The legislation adopts a user pay principle. This means an individual making a request must pay some of the costs the institution incurs to process the request.

For this reason, a requester must have sufficient information to review the costs and decide how to proceed.

Fees must be calculated for every request starting from the time a request is received. The fees apply to time, materials and services. The fees are set out in the regulations.

Fees must be charged unless they are waived by the institution, or unless another statute has an overriding provision for charging fees.

Fees and fee estimates can be appealed to the IPC. Fees and fee estimates should be detailed and reasonable. The IPC can order institutions to lessen or change fees if they find the institution has erred in their calculation of fees.

Types of Fees

Reg. 460 (5.2), (6), (6.1) / Reg. 823 (5.2), (6), (6.1)

The fees that are chargeable under the legislation are described below. Note that not all fees can be charged for personal information requests.

Federal and provincial sales tax is not chargeable for application and processing fees.

Application fee: A $5.00 application fee is required for all requests. Failure to collect the application fee may not prevent the IPC from hearing an appeal about a request that has been completed.

Search time: Institutions may charge $7.50 per 15 minutes for each staff member’s time to manually search for responsive records. Searching includes examining file plans, listings of records and paper or electronic searches.

Search time cannot be applied to other administrative tasks such as photocopying and travel to offices.

Search time can only be charged for general record requests and not personal information requests.

Preparation time: Institutions may charge $7.50 per 15 minutes for each staff member’s time to prepare records for disclosure. Preparation includes severing a record, activities required to generate computer reports and running computer reports, and scanning records into digital format.

Preparation time cannot be applied to other tasks such as reviewing records for relevant exemptions and exclusions, photocopying records, preparing an index of records, preparing records for third party notice, or transporting records.

Preparation time can only be charged for general record requests and not personal information requests.

Computer time: $15.00 per 15 minutes for any person developing a computer program or other method of producing a record from a machine readable record.

Computer time cannot be applied to existing search functions to generate reports, SQL queries or data manipulation.

Photocopies and computer printouts: Institutions may charge $.20 per page to photocopy or print material for disclosure. Double-sided copies count for 2 copies.

Compact Disks: Institutions may charge $10.00 per disk for disclosing records in electronic format.

External Services: Institutions may charge for work that is required to be completed that cannot be done by internal staff due to the specialization required. An example would be reformatting or copying rare media types. In order to charge this fee, institutions must receive an invoice for the cost of the outside service.

This fee cannot be applied to work that could be completed by an institution’s staff, even if an invoice exists.

Shipping: Institutions may charge for postage and courier delivery for disclosed records.

See Appendix 6 for a Sample Fee Estimate Form program areas can use to calculate and document fee estimates.

Estimating Fees and Interim Decisions

FIIPPA s. 57 (3), Reg. 460 (7) / MFIPPA s. 45 (3), Reg. 823 (7)

Institutions have different notice requirements depending on the estimated amount of fees required for processing the request.

Three thresholds for fees and steps Coordinators should follow are outlined below.

Fees less than $25: The institution is not required to send a fee estimate to the requester for fees less than $25.00. The institution completes all necessary work and notifies the requester of the fee amount to be paid in the final decision letter. Fee payment is required before records are released.

Fees between $25 and $100: The institution must notify the requester of the approximate fee. No deposit is required for fees in this range and the institution completes all necessary work and issues a final decision letter. Fee payment is required before records are released.

Fees in excess of $100: Institutions must prepare a detailed fee estimate with an interim decision letter. The institution may require a 50% deposit before taking further action on processing the request. This means the “clock” is stopped and the request is on hold until the institution receives the deposit. Upon receipt of the deposit payment, the institution completes all necessary work and issues a final decision letter with the final fee calculation. Fee payment of the remaining balance is required before records are released.

An interim decision is not final or binding and cannot be appealed. An interim decision also lets the requester know what exclusions and exemptions may apply to the records and that a fee waiver can be claimed by the requester.

While the initial determination that some exemptions are likely to apply cannot be appealed, requesters may appeal fee estimates to the IPC.

When a search is required through a large number of records or where a large number of records are responsive to a request, a fee estimate for searching records can be calculated using a representative sample. A representative sample should be complete and include:

A search of all types of records (e.g., paper, electronic, special media);
A reasonable sample size of a computer file folder, drawer, storage box; and
A useful measurement is a paper stack where one-inch of paper holds about 150-200 single-sided pages.

The estimated total search time can be calculated using:

Number of hours to search the sample;
Number of responsive pages in the sample;
Number of pages requiring severances;
Number of severances per page; and
Any additional work estimated to complete the request.

It is best practice to inform the requester of any time extension when providing a fee estimate and interim letter as this information will impact the requester’s decision to pay a fee deposit.

See Appendix 4.8 for a sample template letter to use for fee estimates and interim decisions where the fee estimate is between $25.00 and $99.00. See Appendix 4.9 for a sample template letter to use for fee estimates and interim decisions where the fee estimate is $100 or more.

Payment of Fees

Institutions generally receive payment for application and other fees by cheque, though other forms of payment are acceptable (e.g., electronic, money order, cash). Institutions cannot stipulate how payment is made. Also, institutions are not required to accept methods of payment they are not set up to do so (e.g., credit card, electronic transfer).

For provincial ministries and some agencies, boards and commissions cheques are made payable to the “Minister of Finance”. For other provincial and municipal institutions, cheques are payable directly to the institution.

Waiving Fees

FIPPA s. 57 (4), Reg. 460 (8) / MFIPPA s. 45 (3), Reg. 823 (8)

Processing fees are mandatory under the legislation; however, a requester may seek a fee waiver. Institutions must notify requesters of their right to request a fee waiver when issuing fees or fee estimates. A requester is responsible for submitting a request for a fee waiver and providing a rationale as to why granting a fee waiver would be fair and equitable.

The legislation and regulations lists factors for institutions to take into account when determining whether granting a fee estimate would be fair and equitable. These factors include:

The extent to which the actual cost of processing, collecting and copying the record varies from the amount of payment required;
Whether the payment will cause a financial hardship to the requester;
Whether the access to the record will benefit public health or safety;
Whether the requester gets access to the record; and
Whether the amount of the payment is too small to justify requiring payment (e.g., $5.00 or less).

While the institution must consider these factors, these factors do not necessarily need to be present in order for the institution to grant a full or partial fee waiver.

Other relevant factors should also be considered when deciding whether or not a fee waiver is fair and equitable. These include:

The manner in which the institution attempted to respond to the appellant’s request;
Whether the institution worked with the appellant to narrow and/or clarify the request;
Whether the institution provided any documentation to the appellant free of charge;
Whether the appellant worked constructively with the institution to narrow the scope of the request;
Whether the request involves a large number of records;
Whether or not the appellant has advanced a compromise solution which would reduce costs; and
Whether a fee waiver would shift an unreasonable burden of the cost from the appellant to the institution, and cause significant interference with the operations of the institution.

If a requester seeks a fee waiver, they must submit the request for the waiver in writing. Institutions are required to review and decide whether or not to grant a full or partial fee waiver. The institution’s decisions to grant or not grant fee waivers may be appealed by the requester to the IPC.

Abandoned or Withdrawn Requests

When a requester communicates to an institution that they are no longer seeking access to the requested information, the request can be considered “withdrawn.” Coordinators should retain documentation, such as email correspondence with the requester that shows the requester’s intent to withdraw the request. When a requester withdraws a request verbally, it is best practice to confirm this intention in writing.

When a Coordinator has attempted to contact a requester in order to proceed with processing the request and has not had a response from the requester, the request can be considered “abandoned.” The IPC advises institutions to allow 30 days to pass before marking a request as abandoned for general record requests. For personal information requests, the IPC advises allowing one year for response before closing the request.

Requesters should be notified in writing that their request may be abandoned. The letter should state the exact date at which the institution will close the file if no response is received. Institutions may choose to include this in a fee estimate letter or clarification letter; or write a separate abandonment letter.

See Appendix 4.20 for a sample template letter to use to advice requesters their request will be considered abandoned if no response is received by the institution.

Request Processing Step by Step

Processing requests is an administrative function that requires knowledge about the legal requirements of the legislation and an institution’s programs and records.

Responding to requests is a collaborative process that includes a number of steps. The sections below outline these steps at a high level. Not all steps may be required for processing all requests depending on the institution and the context of the request.

Step 1: Receiving a Request

The legislation requires that requests be received by the institution in writing and accompanied with a $5.00 application fee. For practical reasons, most institutions can only receive requests by mail or in-person delivery. Some institutions may have the ability to receive requests online or via fax.

Once a request is received, Coordinators and their staff should:

Review the request to ensure the request is complete, which means the request is in writing, includes the $5.00 application fee, and provides sufficient detail.
Open a file, assign a file number, and calculate the 30 day time limit for a response. Note that if the due date falls on a Saturday, Sunday or holiday, the due date is moved to the next business day.
If the institution is using an electronic case file management system, update the system.
Make copies of the original request to work with.
Make copies of any administrative forms to put in the file.
Notify the program area or a program contact if known, of a request.

Coordinators should communicate to the office or offices that are likely to have responsive records (program area) and provide them with the following information:

Wording of the request;
Instructions for conducting the search and recording actions and time taken;
Timelines for completing the record search; and
Instructions on how to deliver copies of responsive records to the FOI office.

Coordinators should contact requesters immediately if the request is missing the application fee or requires clarification in order to proceed. See Appendix 4.2 for a template letter acknowledging receipt of a request that requires a $5.00 application fee and Appendix 4.3 for a template letter acknowledging receipt of a request that requires clarification.

Step 2: Assessing a Request

For routine requests, Coordinators can proceed directly to searching for records or finalizing recommendations and a decision. However, for many requests, additional steps may be required to assess how to proceed with processing a request.

In all instances, it is best practice for the institution to send an acknowledgement letter to the requester confirming the receipt of the request. This acknowledgment letter should include the request number assigned to the request, indicate the date of receipt of the request and provide contact information of the staff member responsible for processing the request. See Appendix 4.1 for a template letter for a standard acknowledgement letter.

Coordinators or their staff should discuss the request with the program area that is likely to have responsive records in order to understand their business, any concerns, possible impact of the search on operations, and alternate ways to respond.

If the request has been sent to your institution in error, or if another institution has a greater interest in the disclosure of the record, Coordinators should take reasonable steps to determine which institution should receive the request and forward or transfer the request.

Coordinators should determine if the request provides sufficient detail for an experienced employee to locate responsive records. If the request does not have sufficient detail, Coordinators should clarify the request with the requester.

If it is determined that a request is considered contentious, Coordinators should notify their issues management team of the request and timelines for response.

Step 3: Searching and Locating Records

The legislation requires that institutions complete a “reasonable search” for responsive records to a request. A search is considered reasonable when an experienced employee expending reasonable effort conducts a search to identify any records that are reasonably related to the request in locations where records in question might reasonably be located. An institution does not have to prove absolutely that no records exist but, only that it conducted a reasonable search.

IPC appeals respecting the adequacy or reasonableness of a search often require an institution to demonstrate that steps were taken to work cooperatively with a requester in scoping their request.

The following are the essential steps that should be taken into consideration in order to conduct a reasonable search.

Clearly understand the search parameters: Requests must be reviewed in detail by the Coordinator and affected program areas responding to ensure there is a clear understanding of what is being requested. Clarification is an important first step and should be undertaken as soon as possible after receipt of the request where a request is unclear or ambiguous. Refer to the section on clarification for more information.

Initiate the record search and ensure all relevant documents are retained: The Coordinator should immediately notify all program areas that may have responsive records to alert them about the request and to ensure that potentially responsive records are secured.

Identify staff to conduct searches: Experienced staff with knowledge of the subject matter of the request and the records management system should oversee and/or conduct searches for responsive records.

Institutions should also assign program area contacts to be responsible for overseeing search efforts in their program. These individuals should work in consultation with the Coordinator to ensure they are familiar with the requirements to fulfil a reasonable search.

Provide clear search instructions: Ensure all employees participating in the search are provided with clear written instructions about what to search for and how to conduct the search. Consider including a step-by-step guide instructing staff how to conduct email, electronic and paper record searches. Coordinators should work with program areas to develop step-by-step guides relevant to the records management practices in those offices.

Specify a date to complete the search, keeping in mind the legislated timeline for response and all of the tasks associated with completing the file. Time extensions may be required in appropriate circumstances and should be discussed with the Coordinator as soon as possible.

Identify all databanks and places to be searched and develop a search plan: Experienced staff with knowledge of the subject matter of the request and/or with special knowledge of the institution’s record holdings should be the ones to identify the databanks and places to be searched.

Searches must include all record repositories that may reasonably be expected to contain responsive records including: on-site file storage and off-site storage facilities. In this regard, records retention schedules and file plans for each office should be consulted.

In general, a search of electronic records should be undertaken where such records may reasonably exist in the electronic recordkeeping environment established by an institution, including email accounts, shared drives, electronic archives, and other electronic storage systems.

Exceptionally and in extraordinary circumstances, a search of a system maintained for disaster recovery purposes (e.g. back-up tapes) may be considered, for example, where evidence exists that responsive records may have been deleted or lost out of the normal recordkeeping environment and the lost records are likely to be located on the back-up tapes. In these cases, consultations should be undertaken with the institution’s Coordinator, records management leads, Legal Counsel and information technology staff prior to commencing a search.

Document search steps: All staff who participated in the search for responsive records should document their search steps including their name, the date they conducted a search, the databanks, the types of files, and other record holdings searched, and finally their search results (even when a search does not locate records).

In case of an appeal, an institution should be prepared to verify in an affidavit:

Staff who conducted the search;
Staff qualifications, position, and responsibilities;
The dates staff conducted the search;
Information about the type of files searched;
The nature and location of the search; and
Any further steps undertaken.

The affidavit should be signed by the person who conducted the search or was responsible for overseeing it.

See Appendix 5 for a sample template form program areas can use to document search activities. Also see Appendix 6 for a sample template fee estimate form program areas can use for extensive searches that may require a fee deposit before work is completed.

Step 4: Reviewing and Analyzing Records

When the search has been completed and all responsive records have been identified, the next step is for Coordinators or their staff to review and analyze the records.

The program area that conducted the search may conduct a preliminary review of the records and identify any concerns regarding access. As the program area is the custodian of the record, they are often in a better position to understand the context of the records. For example, the program area would know whether records received by a third party were supplied in confidence.

A review of records requires careful examination of the content of records, in consideration of how the legislation applies to make an access decision. The process of reviewing records is iterative and may take place numerous times until a final decision is made.

Reviews and consultation may be necessary with program areas, Legal Counsel and decision-makers. In the review process, it may become evident that the following additional steps may be required:

Issuing a time extension for volume of records or consultations;
Notifying an affected person; and/or
Issuing a fee estimate and interim decision.

Institutions should include the responses from affected parties in their analysis when determining whether an exemption applies to a record.

If the request is for access to personal information for research purposes, Coordinators should consider whether a research agreement would be appropriate. More details on research agreements are provided later in this chapter.

Coordinators and their staff should research IPC orders and judicial review case law for interpretation of the relevant sections of the legislation. Guidance documents and internal policies and procedures may also be helpful in determining whether exemptions or exclusions apply to a record.

Coordinators should review previous decisions they have made regarding access to similar records for consistency. However, Coordinators should not rely on past decisions alone as the legislation may have been amended, or new case law may exist that has changed interpretations of the legislation.

The legislation requires that institutions only sever the information that is subject to exemptions or exclusion. Institutions should take steps to sever only exempted information and disclose as much of the records as can be reasonably disclosed without revealing the information that falls under one of the exemptions or exclusions.

A requester must be notified of the section or sections that apply to the severed information. This should be noted on the record beside the severed information. In some instances where few exemptions are cited, this information can be summarized in the decision letter to the requester.

Severing should not be applied where the legislation exempts an entire class of records or where severing would leave only disconnected pieces of information within a record. For example, an entire Cabinet agenda would be exempt under the Cabinet records exemption. In this case, the record should be withheld in full. Institutions should inform the requester of the number of pages of records that have been withheld in full and the exemption or exclusion that applies.

Coordinators may consider creating an index of records to help organize information to respond to the request. The index of records typically includes sufficient detail to support decision-making. In the event of an appeal, the IPC will require the institution to create an index of records for any records that have been severed or withheld in full.

An index of records should include:

The assigned document number to each record;
Date of the record;
Page number/paragraph;
A general description of each record;
The exemption or exclusion claimed (if any); and
Indicate whether access has been granted or refused for all or part of the record.

The index of records should not include personal information or other information that would reveal the substance of an exemption. For instance, the index of records should not reveal the substance of a Cabinet meeting or the subject of solicitor-client privilege communication.

See Appendix 7 for a sample template index of records.

Step 5: Finalizing Recommendations and a Decision

Finalizing recommendations and a decision on disclosure involves preparing records and a draft final decision letter to the requester, as well as getting approvals and sign-off from decision-makers. Approvals processes will vary depending on the request and an institution’s delegation of authority.

It is best practice to document the recommended decision in writing by preparing a briefing note. The requirements for recommendations on access will vary amongst institutions. Briefings may not be required for all requests. Routine requests may be processed without detailed documentation.

A briefing note can form the basis for future appeal submissions to the IPC, if access decisions are appealed. A briefing note is especially useful in an institution where decision-making has been delegated to senior officials who need relevant and concise information to make an informed decision.

A briefing note will typically contain six sections:

Background: This section of the note should describe the request either as it was received, or in its clarified form. Other relevant matters that may help put records in context should also be described, for example, the current status of a program or initiative that records relate to. It may be important for a decision-maker to know whether a program is in the planning, pre-implementation or operational stage of development, as there are different considerations regarding the release of records, depending on the maturity of the project.

Additional information, such as the outcome of any past requests for the same or similar information, should also be described in this section.

Description of records: This section should describe the different types of responsive records. Listing the broad categories of documents is sufficient along with the general content of the records. This description should identify which program areas conducted the search for responsive records.

When a request is voluminous, an index of records may be prepared for the decision-maker to review.

Analysis: This section of the note provides decision-makers with an understanding of how any recommended exemption or exclusion applies to the requested records, and, more importantly, why there is a need under the circumstances that exist at the time of the request to withhold information.

Highlighting relevant case law and/or describing similar decisions previously made by the institution will help assure the decision-maker there is a sound legal basis for the decision. Where there are complex legal points, it may be sufficient to provide an overview and confirm that the Coordinator and Legal Counsel were consulted and have endorsed a particular recommendation.

Exercise of discretion: This section should list the relevant factors considered by the Coordinator in conducting an exercise of discretion. This will ensure that the decision-maker has undertaken the required exercise of discretion, and will serve as evidence of that fact if the institution’s decision is appealed to the IPC.

Fees: This section should provide the decision-maker with background information on how fees were calculated, especially for requests where a large fee estimate was issued and/or there is a possibility that fees may become an issue on appeal.

A decision-maker may be required to decide whether or not to waive fees associated with processing a request. Where a request for a fee waiver has been requested this can be noted in this section along with the reason for the fee waiver request.

Recommendation: This section provides a clear statement of the recommended access decision. Access recommendation statements can include:

Access is provided to the records in full;
Access is provided to the records in part, noting the exemptions or exclusions that are claimed,
Access is withheld in full, noting the exemptions or exclusions that are claimed; or
Access cannot be provided as no responsive records exist.

Other possible decisions, such as the application of fees or the granting of a fee waiver, should also be stated.

Reasonable steps should be taken to ensure approvals are finalized within legislated timelines.

Step 6: Preparing and Sending Records

Upon approval of the access recommendation, Coordinators and their staff should take steps to issue the final decision letter to the requester and prepare records for disclosure.

A decision letter outlines to the requester the final decision on granting or denying access to a record. The legislation outlines requirements for decision letters. The list below includes legislated requirements and best practices based on the circumstances of the request:

The volume of responsive records located;
What records are being released in full;
The exemptions and exclusions applied (if any);
The number of pages severed or withheld for each exemption or exclusion;
Copies of the relevant sections of the legislation;
If any fees apply, the final calculation of fees and required payment;
If any fees apply, information on requests for fee waivers;
The name and position of the decision-maker for the request;
For high volume requests, consider including a copy of the index of records;
Notice that the requester can appeal the decision to the IPC within 30 days and appeal requirements; and
Contact information for an individual who can answer questions regarding the processing of the request.

Disclosure of responsive records may be dependent upon receipt of final fee payment and/or allowing 30 days for affected parties to appeal decisions on access.

The legislation allows a requester the option to:

Receive a copy of all or part of a record;
Examine an original record; and
Request a copy of all or part of a record after examining a record.

The legislation qualifies the above by using the term where it is reasonably practicable to do so. The particular facts of each case must be considered before making a decision.

A requester may seek records in a preferred format when it is reasonably practical for the institution to do so. An example is providing electronic copies of records that only exist in paper form.

A requester must be given a copy of what has been requested unless there is good reason not to provide copies. Copies of records must be clean and legible when possible. A copy of a record should be clearly marked where copyright protection applies.

It may not be reasonably practicable to examine original records because of:

Age and condition of records;
Physical location of records;
Size or volume of records;
Cost of transporting records to a convenient site;
Security of the records cannot be ensured and original records could be damaged, altered, or stolen;
Undue inconvenience or disruption of operations of the institution; and
Legal requirements for maintaining records on site.

It is recommended to have staff present when a requester is viewing original records especially if some of the responsive information is being withheld under an exclusion or exemption.

See Appendix 4 for template decision letters.

Step 7: Closing the File

Upon issuing the final decision letter, the request case file should be closed and information related to the request should be recorded for statistical compliance purposes.

If an institution is using a case file management system, staff should update the system to indicate the date the final decision was communicated to the requester, the outcome of the request including whether or not any exemptions or exclusions were applied to the records.

The request case file should be kept in an accessible location for the 30 day appeal period and in accordance with records retention schedules or policies.

Research Agreements

FIPPA s. 21 (1) (e), Reg. 460 (10) / MFIPPA s. 14 (1) (e), Reg. 823 (10)

In the context of a request, personal information may be disclosed for research purposes under a research agreement when certain conditions are met. "Research purposes" are distinct from administrative, operational or regulatory uses of personal information in that research uses do not directly affect the individual to whom the information relates and do not relate to the usual administration of a program.

Program audits, evaluations and operational reviews are not research for the purposes of the legislation. "Research" means a systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions and an endeavour to discover new or to collate old facts by the scientific study or by a course of critical investigation.

The conditions that need to be met in order to provide access to personal information for research purposes include:

The disclosure is consistent with the conditions or reasonable expectations of disclosure under which the personal information was provided, collected or obtained;
The research purpose for which the disclosure is to be made cannot be reasonably accomplished unless the information is provided in individually identifiable form; and
The person who is to receive the record has agreed to comply with the conditions relating to security and confidentiality prescribed by the regulations.

A research agreement that the institution and researcher enter into governs the conditions listed above. The regulations under the legislation reference the standard agreement available on the Central Forms Repository of the Government of Ontario. The following links direct users to downloadable versions of these template agreements for FIPPA and MFIPPA.

The following considerations should be included in a research agreement:

The researcher must agree to use the information only for a research purpose set out in the agreement or for which the person has written authorization from the institution;
The agreement must name any other persons who will be given access to personal information in a form in which the individual to whom it relates can be identified;
The researcher must keep the information in a physically secure location to which access is given only to the person and to the persons authorized;
The researcher must destroy all individual identifiers in the information by the date specified in the agreement;
The researcher must not contact any individual to whom personal information relates, directly or indirectly, without the prior written authority of the institution; and
The researcher must notify the institution in writing immediately if the person becomes aware that any of the conditions set out in this section have been breached.

Case File and Knowledge Management

In order to manage the request process, institutions must implement a case file management system, whereby information associated with requests is easily accessible.

Case file information may be managed either with an electronic case file management system, a manual register such as excel spreadsheets, or in paper format.

In addition to case file management Coordinators should maintain documentation to support decision-making. To ensure effective knowledge management, resources that should be maintained include:

Guidance and resources from MPBSD and the IPC;
Case law established by IPC orders and court decisions;
An institution’s corporate policies, guidelines and standards; and
Relevant resources and trends in other jurisdictions as required.

Coordinators should routinely review active request files to ensure the request is on track to completion within the legislated timelines. Part of this review should include ensuring proper documentation exists for administrative actions taken on the request.

Coordinators should contact their institution’s records management office for more information on their institution’s records retention policies and procedures.

Statistical Reporting

FIPPA 34 / MFIPPA 26

All institutions need to meet the reporting requirements of the IPC for annual reporting. The IPC publishes guidelines and procedures to be followed on their internet site.

The following information should be tracked for statistical reporting purposes:

Number of requests received and completed within reporting year;
Type of record requested (e.g., general or personal information);
Number of requests for correction received and completed within a reporting year;
Request source (e.g., individual, agent, business, media, academic, association, government);
Number of requests transferred to or from another institution
Number of requests responded to within 30 days, 31-60 days, 61-90 days and more than 90 days;
Number of requests where timelines were extended under allowable time extension;
Number of requests where notices to affected parties were issued;
Number of requests completed within legislated timelines, including extended timelines;
Disposition of request:
- All information disclosed
- Partial information disclosed
- No information disclosed
- Request withdrawn or abandoned
- No records exist
Frequency of application of exemptions or exclusions to a request; and
Fees collected and fees waived