Is my organization legally obligated to respond to FOI requests?

Speculum Romanae Magnificentiae - Maison antique a NymmesGenerally, individuals and private companies do not have a legal obligation to respond to requests for information from the public at large.  In contrast, government institutions generally do have an obligation to respond to requests for information that satisfy certain formal requirements.

For organizations in Ontario, there are three FOI statutes that may apply:  The provincial Freedom Of Information and Protection of Privacy Act (FIPPA), which applies to provincial institutions within Ontario, including universities, colleges and hospitals; the provincial Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), which is substantially similar to FIPPA but applies to municipal institutions within Ontario, including police boards, health boards, and municipal corporations (such as cities, towns, counties and regional municipalities), and the federal Access to Information Act (ATIA), which applies to federal institutions.  FIPPA, MFIPPA or ATIA will apply to your organization only if your organization fits the definition of an “institution” under one of these acts.

FIPPA and MFIPPA apply only within the Province of Ontario, but together they cover over 1,500 provincial and municipal institutions, whereas the federal ATIA covers fewer than 300 federal institutions across all of Canada.

In the context of determining whether FOI laws apply, it is often not immediately obvious whether an organization is considered an “institution” with an obligation to respond to FOI requests, or if it has no such obligation.

As previously noted, the obligation to respond under FIPPA and MFIPPA is limited to “institutions” as defined in the Act.  In setting out the obligation to respond to access requests, both FIPPA (s.10) and MFIPPA (s.4) state that “every person has a right of access to a record or a part of a record in the custody or under the control of an institution”.  Note that this right of access is subject to limitations on disclosure set out elsewhere in FIPPA/MFIPPA.  But more fundamentally, the right of access applies only to records in the custody or under the control of an “institution”, as that term is defined in FIPPA and MFIPPA.

FIPPA defines “institution” as the Legislative Assembly of Ontario (although only with limited application); any ministry of the Government of Ontario; any service provider organization within the meaning of section 17.1 of Ontario’s Ministry of Government Services Act; public and private hospitals; colleges of applied arts and technology; universities; and any agency, board, commission, corporation or other body designated as an institution in the regulations.  If your organization is captured by this definition, then your organization is legally obligated to respond to FOI requests under the rules set out in FIPPA.

Keep in mind one way your organization may be captured by the FIPPA definition of “institution” is if has been designated as an institution by regulation.  The Freedom of Information and Protection of Privacy Act Regulation 460 (GENERAL) includes a schedule setting out over 180 such designated institutions.  If an organization is listed on the schedule, then it is an institution with an obligation to respond to access requests under FIPPA.  The list includes many organizations whose status as an institution responsible for responding to access requests might otherwise be unclear; examples include Agricorp, the Royal Ontario Museum, and the Ontario Science Centre (under its legal name, “The Centennial Centre of Science and Technology”).

Another way your organization may be captured by FIPPA is if it is actually part of a larger institution that meets the definition, and does not have a separate legal identity of its own.  Examples would include the Office of the Athletics Commissioner (legally a part of the Ministry of Tourism, Culture and Sport), Office of the Chief Veterinarian for Ontario (legally a part of the Ministry of Agriculture, Food and Rural Affairs) and the office of the Children’s Lawyer (legally a part of Ministry of the Attorney General).  None of these offices are listed as designated institutions in the schedule, however all would be susceptible to access to information requests under FIPPA.

MFIPPA defines “institution” as any municipality, school board, municipal service board, city board, transit commission, public library board, board of health, police services board, conservation authority, district social services administration board, local services board, planning board, local roads board, police, village or joint committee of management or joint board of management established under Ontario’s Municipal Act, 2001 or the City of Toronto Act, 2006 or a predecessor of those Acts.  If your organization is captured by the definition above, then your organization is legally obligated to respond to FOI requests under the rules set out in MFIPPA.

The Information and Privacy Commissioner of Ontario (IPCO) provides a helpful Directory of Institutions which lists the Ontario government ministries, agencies, community colleges and universities covered by the Freedom of Information and Protection of Privacy Act (FIPPA) as well as the municipalities and other local public sector organizations such as school boards, library boards and police services covered by the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).  For organizations in Ontario looking to determine whether FIPPA or MFIPPA applies to them, the Directory of Institutions provides a quick answer.  But keep in mind if your organization is actually legally a part of a larger institution which itself is captured by FIPPA, the records of your organization will generally be susceptible to access to information requests under FIPPA, even if your branch or office is not individually named as a designated institution in the schedule or listed in the Directory of Institutions.

For federal institutions, the relevant legislation for FOI requests is ATIA.  Similar to FIPPA and MFIPPA, he obligation to respond under ATIA is limited to “government institutions” as defined in the Act.  ATIA defines “government institutions” as “any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I of the ATIA, and any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act”.  Schedule I of the ATIA lists over 100 federal departments, agencies, boards, commissions and other federal organizations.  If your organization is captured by the definition above, or is listed on Schedule I of the ATIA, then your organization is legally obligated to respond to FOI requests under the rules set out in the federal ATIA.

The federal Treasury Board Secretariat maintains a List Of Access To Information And Privacy Coordinators By Institution which provides the names, addresses, and telephone numbers of the ATIP coordinators in all ATIP offices across the federal government.

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Links to Resources:

Ontario:

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

Freedom of Information and Protection of Privacy Act, R.R.O. 1990, REGULATION 460 (GENERAL) https://www.ontario.ca/laws/regulation/900460

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56

IPCO – Directory of Institutions https://www.ontario.ca/page/directory-institutions

Federal:

Access To Information Act http://laws-lois.justice.gc.ca/eng/acts/A-1/

Treasury Board Secretariat – List Of Access To Information And Privacy Coordinators By Institution http://www.tbs-sct.gc.ca/ap/atip-aiprp/coord-eng.asp

Related articles:

  1. Do I have to respond to a Freedom Of Information (FOI) request?
  2. What are the requirements of a valid Freedom Of Information (FOI) request?

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