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I need to do WHAT? Processing your first access to information request

December 22, 2020 - Julie Ursu, Intake Officer

So you just started your new job and you get your first access to information request. You might be asking yourself, what do I do with this thing?, while you toss it to the side and ask questions later. I know the feeling, trust me. What you might not know, is that the clock is ticking on that piece of paper you just tossed among the pile of other priority work you need to complete.

I get it, it’s overwhelming and even more so if you don’t know exactly what your obligations are and where to start. Don’t worry, I’m going to save you some grey hair and from stress eating that box of stale doughnuts sitting on the kitchen counter.

Whether you are subject to The Freedom of Information and Protection of Privacy Act (FOIP), The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) or The Health Information Protection Act (HIPA), you have an obligation pursuant to section 7 of FOIP/LA FOIP or section 36 of HIPA to consider processing the access to information request and a duty to assist under sections 5.1 of FOIP/LA FOIP or 35 of HIPA when issuing a response to the applicant. The following will hopefully assist in understanding your duty to assist in regard to processing access to information requests from the public.

What it is

Check out our office’s resource Understanding the Duty to Assist, for a better understanding of a public bodies duty to assist regarding processing access to information requests.

Below, I’ve created a 5 step process you can follow that will hopefully guide you in understanding your duty to assist and I have provided an overview on how to process an access to information request from start to finish.

Step 1: Access to Information request is received/seek clarification    

  • If the request for information has all the necessary elements required and any applicable fees have been paid, don’t delay, get started right away. Remember, a request does not need to be on the prescribed form, if you have enough information to understand what it is the applicant is wanting access to, you can get started right away and save yourself from breathing into a brown paper bag later when you start running out of time.
  • Seek clarification. If you are unsure what the applicant is wanting or you feel there may be an opportunity to narrow the request, don’t be afraid to call and ask. In my experience, if an applicant is made aware that narrowing their search could speed up the process, they are more than happy to do so. However, ensure that you are both aware that should they want anything and everything, they have the right to ask for it regardless of whether it will be released or not.
  • While you are on the phone with the applicant seeking clarification, explain the process. A quick phone call explaining the process can go a long way. Remember, some applicants aren’t as well versed in the legislation as you and may not know that they need to wait up to 30 days to receive the requested information. If you can advise them of this up front, the chances of them calling you back before the records are ready or making contact with our office will be minimal.

 Step 2: Searching for records

  • You may find it helpful to ensure that your office has a strategy for searching for records. If a review is submitted to our office in regard to a public body or trustees search efforts we will review whether a thorough search was completed based on the following elements found on pages 7-10 in Chapter 3 of our IPC GUIDE TO FOIP. Making thorough search efforts is very important in ensuring you have met your duty to assist.
  • Scroll through our resource directory on our website and check out our resource Responsive Records Search Checklist to make sure you’ve completed a thorough search for records.
  • If records pertain to an individual or third party other than the applicant, seek consent to release when appropriate.
  • If you were unable to find the records make sure you send a letter out to the applicant right away advising that either no records exist or that they were unable to be located. If you believe that the records in question may be held by a different organization, there is no harm in referring the applicant elsewhere. You will want to consider whether another public body has a greater interest in the records and transfer the application according to section 11 of FOIP/LA FOIP where applicable. This will need to be done within the first 15 days and notification sent to the applicant.

Step 3: Process the records for release

  • Processing the records for release all at once won’t only save you time but will prevent the applicant from contacting numerous times asking for additional information. Remember, you have 30 days to gather ALL the information they have requested and prepare it for release.
  • When determining what can or cannot be released, you will need to review all the records in your possession, custody or control that are responsive to the request, line by line and determine whether they will be released in full, part, or refused. Our office often gets questions about what information can be released. Unfortunately, we cannot guide you through this as it would affect our ability to remain impartial in the event of a review. The best advice we can give is to ensure that the release of information is in accordance with the legislation and that you have the authority to provide the information or withhold it. If you are unsure about whether you are applying the legislation correctly, you can use our guides to help. The guides will advise you of the tests our office uses if an applicant requests a review of exemptions and how decisions are made as to whether our office agrees with the information being withheld. The guides can be found below. The guide to LA FOIP is still under construction but you can find a lot of the same information in the Guide to FOIP.
  • Prepare an index of records. This can be helpful in assisting the applicant in understanding what information was searched, what was located and what was provided, especially if they have requested a large number of records. This will also help you stay organized and ensure that you have located all pertinent information related to the original request. See our blog titled NOTICE: Change of Practice – Index of Records regarding our office’s procedure that requires an index of records to be submitted in the event of review.

Step 4: Tick, Tock, Tick, Tock, You’re running out of time

  • If you are finding that you are running out of time while processing the request, you may have the ability to issue a notice of extension to the applicant. Extensions can be issued allowing a public body/trustee an additional 30 days to respond to a request. However, you will need to ensure you have the ability to do so under section 12 of FOIP or LA FOIP or section 37 of HIPA. Make sure to send an extension letter to the applicant right away to let them know that you require an additional 30 days to process their request.
  • Remember, extensions can only be granted in specific circumstances and you will need to make the applicant aware of this within the first 30 days.

Step 5: Records are ready for release, responding to the applicant

  • Once the records are ready for release, ensure you have issued a section 7 (FOIP or LA FOIP) or section 36 (HIPA) response to the applicant. The letter should reference the original access to information request and date received by your office, an explanation of the records included (if applicable) and whether they have been issued as full release, partial, or explaining that they are refused. Make sure you have referenced which piece of legislation was used in making your decision for partial release or refusal. In addition, if no records were found or they do not exist, you will need to respond appropriately to the applicant advising them of this outcome. Make sure to include that the applicant has the right to request a review of your decision from our office.
  • If you’ve prepared an index of records, it’s a good idea to send a copy of this in the response package to the applicant. This will provide them a thorough explanation of what information is included and in the event that information was not provided, they will have an understanding of why which may prevent a review with our office.
  • If you need help with preparing response letters to applicants in accordance with FOIP or LA FOIP, please check out some sample letter templates You can scroll through, select the letter which best suits your situation and start writing. Wow, what a timesaver!
  • If an applicant has questions about the response that has been provided, do your best to explain the information that was provided, why information may have been withheld completely, or in part under a certain section of the act, this too may save you from a review.

I hope these step by step instructions have been helpful in explaining how an access to information request works, your obligations under the applicable legislation and assists you in developing some of your own strategies to help save time and unnecessary stress.

For more information on duty to assist, please check out the following resources below:

In the Door, Out the Door (online training tool developed by the Ministry of Justice’s Access and Privacy Branch)

Understanding the Duty to Assist

IPC Guide to HIPA

IPC Guide to FOIP

IPC Guide to LA FOIP

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