NOTICE: Change of Practice – Index of Records

September 15, 2017 - Ron Kruzeniski, Information and Privacy Commissioner

As of November 1, 2017, when withheld records are subject to a review, this office will be requesting an index of records from the public body and will provide a copy to the applicant upon receipt (except when subsection 7(4) is invoked). Staff of the IPC will call you regarding the submission and will respect the public bodies’ wishes on that submission.

My office will be indicating in its notification letter that the index of records will be sent to the applicant when received by my office. This change is a return to an earlier practice and is intended to make the process more transparent and fairer.

When an access to information request is made to a public body, many steps must be followed before a response to the applicant can be provided. At some point during processing, the public body should develop a search strategy and will execute the search for responsive records.  Once the record is identified, it should be paginated in preparation for internal review.  This review of the responsive records, among other things, involves deciding which document to withhold and which to disclose.  It also involves deciding what to sever on a record that is being disclosed.

At this stage, the public body knows the types of records and which pages or portions are being released and which ones are being withheld. Preparing an index of records at the processing stage can arguably help the public body keep track of what is at issue and be used in any early negotiations with the applicant.

To not disclose, the public body needs to claim an exemption under 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 Privacy Act, (HIPA).  If the public body withholds information, it has to write the applicant and tell him or her which records are being released and which are not.  My office refers to that response as the section 7 letter.

If the applicant is not satisfied with what is disclosed, he or she may request a review from my office. As part of the notification process, my office writes the public body asking for an index of records (that it may or may not have already prepared), a copy of the records and its representation (submission).

My office has indicated that it will ask the public body whether the submission can be disclosed to the applicant. If the public body says no, that position will be respected and the submission will not be sent to the applicant. The IPC does not and will not disclose the actual records.

The index of records is in a different position. It is not the representation.  It is a list of the records which the public body is refusing to give the applicant.

The index of records allows the applicant to see the exact number and types of records involved and the exemptions applied to each. Sharing this with the applicant provides my office with an opportunity to clarify if the records listed are what the applicant is interested in but also gives us the ability to explore the possibility of narrowing his or her request.  This may result in less effort down the road by all and result in a more timely resolution.  I hope this modification of practice will result in narrowed requests, less work and earlier resolution of reviews by my office.  Finally, if a report is issued, it is easier to point out whether or not this office agrees to exemptions applied to specific records, page and line items and make recommendations accordingly.

When preparing its index of records, this office recommends the public body include the following elements in table form:

  • Page numbers/range;
  • Description of the records (i.e. letter, email, memo, handwritten notes, report) along with date, job titles and organization affiliation of those involved;
  • Status: released in full, in part, or withheld in full; and
  • Exemptions applied.

A sample of what this could look like is offered below:

Index of Records

[insert name of public body]

[insert your file #; IPC file #]

[Date prepared]

Page range

General Description Status

Exemption(s)

1-10

Final Report

Dated April 1, 2017

Author: Auditing Firm

Released to applicant in part

Section 19(1)(c)(ii) of FOIP

 

11-14

Email Thread

June 12, 2017 to July 13, 2017

To: Deputy Minister of Justice

From: Executive Council, Communications Advisor

Withheld in full

Sections 16(1)(a), 17(1)(b)(i) of FOIP

15

Attachment to email, draft letter

Dated July 13, 2017

Author: Justice Legal Counsel

Withheld in full

Section 22(a) of FOIP

The public body should NOT provide any confidential comments in the index of records.  Those confidential comments should be included only in the submission. This includes content to which a mandatory exemption would apply (i.e. third party personal information or information to which section 19 of FOIP would apply). Subject lines may help further in describing the records but this and other content may be omitted from the index of records if it would reveal information to which an exemption applies.

The wording of the access to information request may also be inserted into the table header to be clear which request the records relate to. This is, of course, optional.

Email threads/strings may be tricky to capture in an index of records as they may go back and forth for a long period of time and involve a number of different individuals (cc’d as well). To simplify, this office recommends that instead of listing every date involved in the discussion that the date range is offered only.

In our experience, other elements may be helpful to include in the index of records. For instance, if one page has multiple redactions with multiple exemptions applied, it may be helpful for all parties involved if each severed portion is marked with a different sequential number.  You may also wish to further distinguish the type of documents with a record or document number or letter.  Listing a generic subject of the record (i.e. advice sought) at issue too could help an applicant identify records that he has no interest in and eliminate from the review.

It also may be easier to include all records on the index of records even if released in full to the applicant. Though this office does not need copies of records released in full, an index of records that details the full record may prove as a useful reference in ongoing dialogue with the parties.  A quick check of the index of records and records on file is a helpful way to double check to ensure nothing is overlooked.

For a blog on a public body’s thoughts regarding the index of records, see a blog by Krista Bostock at https://oipc.sk.ca/using-an-index-to-clarify-an-access-request-and-reduce-the-cost/.

 

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