Duty to Assist – Ask, What Do You Need?
The Freedom of Information and Protection of Privacy Act (FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) since 2018, have a section on the duty to assist, it provides as follows:
5.1(1) Subject to this Act and the regulations, a government institution shall respond to a written request for access openly, accurately and completely.
(2) On the request of an applicant, the government institution shall:
(a) provide an explanation of any term, code or abbreviation used in the information; or
(b) if the government institution is unable to provide an explanation in accordance with clause (a), endeavour to refer the applicant to a government institution that is able to provide an explanation.
We treat this as an obligation for a public body (government institution or local authority) to assist the applicant as much as possible.
FOIP and LA FOIP also have a section on clarifying an access request which provides:
6(1) An applicant shall:
(a) make the application in the prescribed form to the government institution in which the record containing the information is kept; and
(b) specify the subject matter of the record requested with sufficient particularity as to time, place and event to enable an individual familiar with the subject-matter to identify the record.
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(3) Where the head is unable to identify the record requested, the head shall advise the applicant, and shall invite the applicant to supply additional details that might lead to identification of the record.
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Applicants sometimes draft their access requests extremely broad. That results in possibly thousands of pages to be copied and sent. That is a lot of work for the staff member and potentially a large fee for the applicant.
My office discourages public bodies from asking why the applicant wants the information, but it can be reasonable to ask the applicant “what do you need?” An answer to that question increases understanding, possibly narrows the scope of the access request, and may result in the applicant getting the records sooner, reduces the fee or results in no fee at all.
I emphasize that the “what do you need” question might be asked in certain circumstances. The applicant may have already stated his or her purpose or made it clear exactly what they wanted. In those instances, there is no need to ask.
It is also important to frame your question in a certain way. You might say:
- “I have a duty to assist you, and to better assist you, if you tell me what information you need, that will help me get you the records you want”,
- “I read your access request and I need some clarification as to what information you are seeking”, or
- “What is it that you require in terms of information?”
Now the applicant may refuse to answer your question and if so, then you must do your best to read the access request and provide those records requested.
I would suggest you never ask an applicant what they are going to do with the information. They are entitled to records under section 5 of FOIP or LA FOIP and what they do with that information is entirely up to them. They may want it because they want to know, they may want to write an MLA or a minister or they may want to contact the media or post the information on a website. If the applicant is from the media, you know they are working on a story. They are doing their job. Those are all legitimate actions, and a citizen is free to do whatever he or she wishes with the record.
On the other hand, if a staff member understands what the applicant needs, that staff member can read the access request, interpret it, and provide the applicant information or records that help meet the applicant’s needs. Again, I repeat, the applicant does not have to say why and a refusal not to say, should always be respected.
A word of encouragement to applicants. Before you write out your access request, you should think about why you want the information and what you are going to do with it. An access request for less information might just let you get that information sooner and for a reduced or no fee. Broad access requests increase the chances that you will get a higher fee quote. You could also telephone the public body and say I am making an access request, and can you tell me the files or file folder I should ask to be searched. Now you might not trust the public body, so in that case don’t ask such questions.
Applicants, when you are asked by the staff member the question “what do you need”, and you determine the staff member is trying to be helpful, tell them what you really are trying to get copies of. It might just get you the information sooner at no cost. Remember if you don’t’ get all that you want, you can always make a second access request.
So, to sum up, knowing “what you need” can help reduce the number of records to be produced, the work involved and sometimes the fees. It is worth it for public bodies and applicants to work together to reduce work, time to respond and fees.