Freedom Of Information (FOI) laws are intended to provide the public with a right of access to information under the control of government institutions. When an institution receives a formal FOI request, it is obligated to respond with a decision regarding the disclosure of the requested information within a reasonable timeframe.
An effective FOI system must impose a deadline on government institutions to respond to requests. If institutions had no deadline to respond, they might simply refuse to respond to FOI requests, or take the position that the FOI request was “in progress” indefinitely. Imposing a deadline on government institutions to respond to FOI requests also provides guidance from a resourcing perspective – institutions are expected to dedicate sufficient employee and systems resources to ensure that every FOI request is responded to within the required timeframe.
In Ontario, the basic rule is that a decision letter must be issued with 30 calendar days of the receipt of the FOI request by the institution. However, in practice, many FOI requests are not responded to within 30 days. This is because there are a number of actions that an institution is permitted to take which have the effect of extending the deadline. For example, some communications sent by the institution to the requestor have the effect of “stopping the clock” until a satisfactory response is received by the institution. As well, in appropriate circumstances, institutions are also permitted to issue a time extension, which provides the institution with a later deadline to respond. (These actions will be the subject of later articles.)
An institution is required to issue a decision letter in respect of every request received within 30 calendar days unless the institution has by its actions postponed the deadline, in which case, the institution is required to abide by the new deadline.
What happens if an institution fails to issue a decision letter by the deadline? In Ontario, an institution that fails to respond by the deadline is deemed to have given notice of refusal to give access to the responsive records on the last day of the period during which notice should have been given. In other words, if an FOI requestor doesn’t receive a decision by the deadline, the requestor is permitted to proceed on the basis that the institution has denied the requestor access to the record. This is known as a “deemed refusal”.
The prospect of a “deemed refusal” being imposed on an institution creates a powerful incentive for institutions to respond to FOI requests on time. This is mainly because a “deemed refusal” allows the FOI requestor the opportunity to file an appeal with the Information and Privacy Commissioner of Ontario (IPCO) challenging the refusal.
An appeal on the basis of a deemed refusal gives the requestor several tactical advantages. In some cases, a sophisticated requestor may regard an institution’s deemed refusal as a boon, because the appeal will begin with the institution on its back foot. If an institution has truly failed to respond in time, it has already failed to comply with its legal obligations, potentially starting the appeal with a mark against it. Further, once an appeal has been initiated on the basis of a deemed refusal, the institution may lose certain rights and options it could have employed prior to the deemed refusal.
For example, the institution may lose its ability to rely on certain disclosure exemptions that would have otherwise been available. Generally, an institution may refuse to disclose a record either on the basis of a compulsory exemption (for example, to protect the personal privacy of an individual, or to protect third-party confidential information) or on the basis of a discretionary exemption (for example, to protect the confidentiality of advice given to government, or to protect the economic interests of Ontario). There are far more discretionary exemptions than compulsory ones, and institutions often find the discretionary exemptions useful to justify the decision withhold that the institution believes should not be disclosed. However, as noted in s. 11.02 of the IPCO Code of Procedure, an institution will not be given the opportunity to make a new discretionary exemption claim after the institution has made a deemed refusal. So, exemptions under FIPPA or MFIPPA that may have provided perfectly valid justifications not to disclose records prior to the deemed refusal may no longer be available to the institution in the appeal itself.
Additionally, once the appeal has begun, the institution can no longer take actions it might have been able to take prior to the deadline without the involvement of the IPCO. Until the deemed refusal, the institution may have been able to take the position that it could not respond to the request without further clarification from the requestor. Had the institution sent the requestor a request for clarification, the clock would have stopped until a response was received from the requestor, potentially giving the institution additional time to consider its response to the request and make internal inquiries. Or the institution may have been able to issue a fee estimate and request for payment, or even a straightforward time extension, both of which would have the effect of giving the institution more time.
Finally, as with any appeal process, the appeal of a deemed refusal has the effect of creating additional work for the institution. Given the institution was unable to answer the initial request in time, the prospect of the additional administrative work required to manage an appeal can present a significant incentive to avoid appeals, especially as the costs and time expended by the institution in the appeal will generally be unrecoverable.
If the requestor and institution are unable to settle the matter, what kind of remedy is the IPCO likely to provide to a requestor who initiates an appeal on the basis of a deemed refusal? Frequently, the IPCO adjudicator will impose specific deadlines in the institution to comply with its obligations – including issuing a final decision letter, but which may also include issuing notices to affected third parties (see e.g., IPCO Orders PO-3747, PO-3769, PO-3783, PO-3794). In practice, the IPCO appears to have a strong preference for allowing the institution itself to issue at least make the initial disclosure determination. However, IPCO retains authority to order an institution to make full or partial disclosure of the requested information, which IPCO may be more likely to employ where the timeline it imposes in its initial order is not respected (see e.g., PO-3667).
I encourage you to refer this article to a colleague, and to subscribe to the FOI Assist blog. To subscribe, simply enter your email address at the bottom of the page then click the follow button.
Links to Resources:
Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31
Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56
IPCO Code of Procedure https://www.ipc.on.ca/wp-content/uploads/2004/10/code.pdf
IPCO Access to Information Orders https://decisia.lexum.com/ipc-cipvp/en/nav.do