Government institutions across Canada generally have an obligation to respond to requests for information so long as the requests satisfy certain formal requirements. A well-formed Freedom of Information (FOI) request will legally compel a response from government; in contrast, a request that does not comply with the formal requirements is normally regarded as an informal inquiry, which does impose any obligation to respond under Canada’s FOI laws.
In various jurisdictions across Canada, the formal requirements of an FOI request may include:
- being in writing
- being directed to the appropriate institution
- making reference to the appropriate FOI legislation
- providing sufficient detail to enable the institution to identify the requested record(s)
- the payment of an application fee
In Ontario, the formal requirements of a FOI request are the same under both s. 24 of the Freedom of Information and Protection of Privacy Act (FIPPA) and s. 17 of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). To make a request under either FIPPA or MFIPPA, a person seeking access to a record from a provincial or municipal institution must:
- make a request in writing to the institution that the person believes has custody or control of the record
- specify that the request is being made under the Act (either FIPPA or MFIPPA)
- provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record
- at the time of making the request, pay the fee prescribed by the regulations for that purpose (which is currently $5).
The formal requirements set out above for FOI requests made in Ontario under FIPPA or MFIPPA are explained in greater detail immediately below.
- The request must be in writing
Under FIPPA/MFIPPA, a formal FOI request must be in writing. A verbal request for information, whether in person or over the phone, is never a formal FOI request under FIPPA or MFIPPA.
The Ministry of Government Services’ Freedom of Information and Protection of Privacy Manual (the “FIPPA Manual”) notes that “for practical reasons, most institutions can only receive requests by mail or in-person delivery”. Institutions are not required to accept requests that may arrive via e-mail or by fax, although some institutions may have the ability to do so. Institutions are also permitted to establish methods for the public to submit FOI requests online.
- The request must be made to the institution that the person believes has custody or control of the record
This requirement puts an onus on the requestor to send the request to the institution that they believe has custody or control of the request record; however, if the requestor sends their request to the wrong institution, the receiving institution is generally obligated to forward the request to the correct institution. An FOI request cannot be ignored or rejected simply because the requestor has submitted it to the wrong institution. (Forwarding and transferring requests will be discussed in a future article.)
- The request must specify that it is being made under the Act (i.e., FIPPA or MFIPPA)
This requirement is the result of a relatively recent amendment to both FIPPA and MFIPPA and therefore has not yet been the subject of much deliberation. Neither FIPPA nor MFIPPA sets out any specific wording that must be included in the request – so potentially, merely stating that the request is intended as an “FOI” request may be sufficient to meet the requirement, so long as there is no confusion about which Act should apply.
- The request must provide sufficient detail […] to identify the record
If the request is unclear or vague, and more information is required from the requestor before the institution is able to process the request, then it is not yet a valid FOI request under FIPPA/MFIPPA. The FIPPA Manual directs institutions to contact the requestor immediately to request clarification.
- The requestor must pay the required application fee
Under FIPPA/MFIPPA, institutions have no legal obligation to make a disclosure decision in response to an FOI request unless the requestor also pays the required application fee; where an FOI request is submitted without the fee, the FIPPA Manual directs institutions to contact the requestor immediately to request payment.
How to handle deficient requests generally
In general, if it is apparent that a requestor intended to submit an official FOI request under FIPPA or MFIPPA but the request is deficient in some way, or if it is not clear whether the requestor was attempting to file a formal FOI request, the best practice for the receiving institution is to attempt to notify the requestor of the deficiency and explain how it can be rectified. However, if the requestor fails to address the deficiency or to provide the requested clarification, under FIPPA/MFIPPA, the institution has no obligation to issue a disclosure decision or to otherwise process the request.
Not all requests for information must be submitted in the form of a formal FOI request; proceeding informally may provide certain advantages to both the requestor and the institution, such as potentially lower costs, faster turn-around, and the ability for requestors to submit requests in person, by telephone, by fax or by email. However, when a requestor agrees to proceed informally, they lose the opportunity to appeal the institution’s decision on access, and perhaps more importantly, lose the ability to appeal on the basis of a “deemed refusal” if an access decision is not granted by the institution in a timely fashion. (Informal requests will be the subject of a future article.) The FIPPA Manual suggests confirming any agreement to manage a request informally in writing with the requester. Attempting to obtain written confirmation to proceed informally may be most appropriate for cases where it is unclear whether the requestor originally intended their request to proceed as formal FOI request or as an informal information request.
Federal Instutions under ATIA
For federal institutions, under s. 4 of the Access To Information Act, requests must be in writing and submitted together with the required application fee (currently $5).
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Links to Resources:
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/statute/90f31
Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56
Municipal Freedom of Information and Protection of Privacy Act R.R.O. 1990, REGULATION 823 (GENERAL) https://www.ontario.ca/laws/regulation/900823
Ministry of Government and Consumer Services – Freedom of Information and Protection of Privacy Manual https://www.ontario.ca/document/freedom-information-and-protection-privacy-manual
Access To Information Act http://laws-lois.justice.gc.ca/eng/acts/A-1/
Access To Information Regulations http://laws-lois.justice.gc.ca/eng/regulations/SOR-83-507/