Deemed refusal of access vs. late response – what is the difference?
Did you know that a late response is different than a deemed refusal of access under The Freedom of Information and Protection of Privacy Act (FOIP), The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP), The Health Information Protection Act (HIPA), and both are reviewable issues with our office?
Unless circumstances exist which would extend the response time, such as the request being transferred, a fee estimate being issued, or an extension being applied, a public body/trustee will have a legislated timeline of 30-days to issue a response to the access to information request which is compliant with section 7 of FOIP/LA FOIP or section 36 of HIPA. Failure to comply with this 30-day legislated timeline may result in a review from our office.
Deemed Refusal of Access
If no response is received for an access request, this is considered a deemed refusal of access. Our Dictionary defines deemed refusal as when a public body/trustee has not responded to an access request within the legislated 30-days and it has been inferred that they will not provide the applicant with the requested information pursuant to subsection 7(5) of FOIP/LA FOIP or subsection 36(3) of HIPA. An applicant has the right to request a review from our office regarding why no response was received within the legislated timeline.
When a request for review is received for a deemed refusal of access, in an effort to resolve the matter via early resolution, our office will attempt to facilitate a response being provided by the public body/trustee. If early resolution is achieved with a section 7/36 response being issued, the matter of the deemed refusal is resolved as a response was now provided. That being said, an applicant would still have a right to request that our office review the matter of the response not being issued within the legislated timeline.
Review Reports 092-2019, 124-2019 and 144-2017 & 145-2017 are examples of when our office was successful in facilitating a response being provided to the applicant and then proceeded with a formal review which included looking at why the response was over the legislated timeline.
If early resolution is not achieved and we are unable to facilitate a response being provided to the applicant, we can then proceed with a formal review regarding the deemed refusal of access.
Review Reports 152-2020 and 106-2016 are examples of when our office was unable to successfully facilitate a response being provided to the applicant and therefore, conducted a formal review on the matter of the deemed refusal.
If an applicant receives a response that is issued after the 30-day timeline, it would be considered a late response. An applicant has the right to request a review from our office regarding why the response was over the legislated timeline as well as any concerns with the content of the response.
Review Report 062-2019 is an example of when an applicant requested a review from our office and wished to include the matter of the response being late in the scope of the review.
I hope this information was helpful in distinguishing the difference between a late response and a deemed refusal of access. If you have any questions, please contact our office at firstname.lastname@example.org.