Prescribed access to information request form
My office has encountered situations where an individual writes a letter or sends an email requesting information. The public body responds that the request is not in the prescribed form. The FOIP Regulations do prescribe a form and that form is available on our website here.
In Review Report 223-2018 regarding the Rural Municipality of Blaine Lake #434, my office has taken the position that if the access request contains all the elements, it should be treated as an access request.
The Legislation Act, which came into force on May 15, 2019, provides:
Deviations from required form
2-26 If an enactment requires the use of a specified form, deviations from the form do not invalidate a form used if:
(a) the deviations do not affect the substance;
(b) the deviations are not likely to mislead; and
(c) the form used is organized in the same way or substantially the same way as the form the use of which is required.
This provision in effect says that if you have all the same information as the prescribed form, it should be treated as an access request.
So, I would ask all public bodies to review letters or emails they receive requesting information, and if the request contains all the required elements, then proceed to treat it as an access request.
There will be situations where almost everything is in the letter or email and the public body could say, “oops, sorry you haven’t included all the elements”. A better practice would be to phone or email the person and request that final piece of information. Section 5.1 of FOIP imposes a duty to assist and what better way to assist than by getting the one piece of information and proceeding with the request. If a public body does not do this, then the person requesting the information could just file another request with the omitted element. Why put people through that when being technical merely causes delay.
Having said all of that, I think it is still fine to have a prescribed form and I would certainly encourage public bodies when they get that initial call asking for information, they suggest that people use the form and provide it if requested. This prevents them from missing out on important information.