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What About the Non-Responsive Record?

July 14, 2017 - Ron Kruzeniski, Information and Privacy Commissioner

When a public body gets an access request, it has the obligation of searching for the responsive (relevant) records. In almost all cases, 99.9% of the public body’s records will be non-responsive to the applicant’s access request.

There will be times where a decision has to be made whether a record is responsive or non-responsive to an access to information request. If the decision is that it is non-responsive, I would suggest it is best practice that the public body should provide it anyway (subject to exemptions). If the public body would see the non-responsive record as being exempt from disclosure, then of course, the record should not be provided; however, the applicant should be advised in the section 7 decision that there are records being withheld as non-responsive, but also exempt under a particular section of the legislation. The reason for this suggestion is how else will the applicant or my office know that a record was treated as non-responsive? During a review, my office will ask to see all withheld information whether an exemption was applied or if treated by the public body as non-responsive and will make a call as to whether or not we agree.

In other situations, a record may have responsive and non-responsive information in it. The public body is obliged to provide the applicant with the responsive information (subject to exemptions), and it has to decide what to do with the non-responsive information in that same record. Again, I suggest best practice is to provide the non-responsive information to the applicant (subject to exemptions). Alternatively, the public body might choose to sever the non-responsive information, but that strikes me as a waste of time. Unnecessary severing causes applicants to be suspicious that something is being hidden. An applicant could submit a second access request for the severed non-responsive portions and the public body would have to provide it (subject to exemptions).  So, this blog is written just to encourage public bodies to release non-responsive portions of records where an exemption does not apply.



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