UPDATED: Clarifying Access Requests: Unclogging the Pores of FOIP
Consider the following scenario from three perspectives:
Imagine you are an applicant who has made what you thought was a fairly simple access request. You are shocked when a courier arrives at your door with five banker’s boxes full of records. Now you have to go through it all and find what you are actually looking for.
Now imagine the relief of that FOIP Coordinator at the public body that has just got those five boxes records out the door just in time to meet the legislated timelines. But the relief is short lived… after spending all of that time searching for and preparing those records, he is now backed up on all the other requests that have come in and has to rush to get them completed on time.
Finally, imagine the Analyst at the IPC who is cowering under her desk after another copy of those five bankers boxes are placed on her desk for review – the Applicant is not sure if they have actually received what they requested in the first place. (Just kidding! I rarely cower… but I do eat a lot of chocolate to cope.)
This happens all too often because there is not always sufficient communication with the Applicant to pinpoint what records they are really after. This is part of the duty to assist.
Amendments to The Freedom of Information and Protection of Privacy Act (FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) that came into force on January 1, 2018 made a public body’s duty to assist an applicant with an access request explicit. Working with an applicant to possibly narrow an access request is part of this duty.
Applicants often make very broad requests – and understandably so. They usually do not have firsthand knowledge of the types of records a public body keeps. In order to ensure they have captured everything there might be, the request can become pretty broad.
FOIP Coordinators have the most to gain by clarifying a request with an applicant. Not only do they have to find the records, they also have to deal with a review by the IPC if the applicant is not satisfied. However, I understand the pressures that FOIP Coordinators are under. More specifically, to respond to requests within the legislated timeframe. Well, I have good news for you! Subsections 6(3) and (4) of The Freedom of Information and Protection of Privacy Act (FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) allow a FOIP Coordinator to ‘stop the clock’ while they are clarifying requests. So document those games of telephone tag!
I recognize that some applicants intentionally make broad requests to frustrate public bodies. I think we can all agree that that is the exception, not the rule.
There are several ways to clarify an access request, whether it be simply by telephone or e- mail, or through an index of records. For more information on how an index of records helped an actual FOIP Coordinator clarify a request, read our guest blog by Krista Bostock from the former Sun Country Health Region here.
Applicants, you can also be proactive. Although it is best to make a written access request, you can always follow up by contacting the FOIP Coordinator directly. The Access and Privacy Branch can help you track down the appropriate FOIP Coordinator. Also, in my experience, most FOIP Coordinators are knowledgeable about their organization’s records and are genuinely eager to help. You can trust them to help you focus in on what you are after. They may apply exemptions in the end, but I am sure they do want to narrow it down as much as you do.
At the IPC, clarifying the Applicant’s request is one of our first steps when a request for review is received. For more information on our early resolution process see our resource What to Expect During a Review with the IPC: A Guide for Public Bodies.
For more information on the duty to assist see our resource Understanding the Duty to Assist: A Guide for Public Bodies.
Although it can seem like public bodies, applicants and the IPC are on opposing teams, when it comes to clarifying requests, it is in all of our best interests to work together.