Say what? Clarifying and narrowing requests

34.30(3)

Today’s article is intended for institutions in Ontario responsible for responding to FOI requests under either the Freedom of Information and Protection of Privacy Act (FIPPA) or the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

Often, an institution will receive an FOI request that is incomplete or unclear.  It isn’t always easy to know what records a requestor might be looking for.  In some cases, the requestor may know about documents that the FOI Coordinator who initially reviews the request isn’t familiar with.  More frequently, however, the requestor is unfamiliar with what documents the institution may have, but the requestor has a particular topic of interest in mind and is seeking more information.  In this case, the requestor might draft a request that is open-ended, vague or unclear, in an attempt to obtain records related to the topic of interest without having to know too much about what specific records are in the possession of the institution (or even whether any relevant records exist).  In some cases, the request may be valid, but so broad in scope that it is unclear whether the requestor really intended to invoke the large, lengthy and expensive search that would be required the satisfy the request.

In all of these cases, the FOI Coordinator might be left not knowing how to proceed.  Simply ignoring the request is generally not a good option – the requestor might make a complaint, or even use the institution’s lack of response as a basis for filing a deemed refusal appeal to the Information and Privacy Commissioner of Ontario (IPCO).  Fortunately, institutions have better options when an incomplete or unclear request comes in.  Rather than ignoring the request or attempting to move forward with the request as written, it may make more sense for an FOI Coordinator to first attempt to either clarify or narrow the request.

Clarifying an FOI request

Under s.24(1) of FIPPA and also under s.17(1) of MFIPPA, a requestor must “provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record”.  A request that does not comply with this standard does not meet the requirements of a valid FOI request and therefore does not create an obligation on the institution to respond to the request with an access decision.

If a request could reasonably be interpreted in multiple different ways, this is a strong indication that it lacks the required level of detail.  Alternatively, there may be no reasonable interpretation of the request.  The FOI Coordinator may be tempted to “guess” what the requestor intended, but it is generally preferable to actually reach out to the requestor and seek clarification rather than take a guess – after all, the requestor’s own interpretation of their request is not the only one that matters; the request will also be interpreted by the various individuals at the institution involved in responding to the request, and it may also be subject to interpretation by an IPCO adjudicator, or in court, or even in the media.  It is therefore best to ensure that a request is set out clearly and in sufficient detail prior to attempting to locate documents responsive to the request.

Here are a few examples of requests that may not provide sufficient detail to be a valid FOI request:

Request #1:

“All emails relating to the mayor of Toronto from 2010-2018 in the possession of the institution.”

Problem:  Toronto has had three mayors from 2010 to 2018.  Does the requestor want all emails relating to the current mayor (John Tory), or to whomever was currently the mayor at the time the requested emails were sent?  The requestor will need to be asked for clarification here.

Potential clarification: All emails relating to John Tory from 2010-2018 in the possession of the institution.”

Request #2:

“All computer documents relating to RFP 2018-12345.”

Problem:  What is a “computer document”?  Is this intended to cover emails?  What about documents produced by a computer but which may now exist only in printed form?  Is there something about “RFP 2018-12345” that would provide additional context?  Perhaps a staff member with knowledge of the RFP could help explain what the requestor meant here, but more likely, the requestor will need to be asked directly.

Potential clarification:  All records in the procurement department’s RFP 2018-12345 file.”

Request #3:  

Any lists of race-related associations and organizations maintained by the institution” 

Problem:  Does “race-related” refer to sport racing and gaming (for example, Ontario Racing or the Lakeshore Horse Racing Association), or to racial heritage, fellowship, education and advocacy organizations (for example, the Canadian Race Relations Foundation, the Anti-Racism Directorate or the Ontario Black History Society)?  If the meaning is not clear, the requestor should be asked for clarification.

Potential clarification:  Any lists of horse racing or other racing associations and organizations maintained by the institution.”

In some cases, sufficient context may be provided by the details surrounding the request, for example, the nature and purpose of the institution to whom the request is directed, and the identity of the requestor, including any organization the requestor is representing or affiliated with.  However, in many other cases, the request will be too vague and too susceptible to multiple interpretations until additional information is obtained to clarify the request.

FIPPA and MFIPPA do not allow institutions to simply ignore deficient requests.  Under s.24(2) of FIPPA and s.17(2) of MFIPPA, if a request does not sufficiently describe the record sought, the institution has an obligation to respond to the applicant to inform them of the problem and to offer assistance to the applicant with reformulating their request into something with sufficient detail.

An institution that has received an unclear request is obligated to get in touch with the requestor in order to assist them in preparing a request that meets the requirements of FIPPA/MFIPPA.  The process of getting in touch with the requestor to help them formulate a clear and unambiguous request is known as “seeking clarification”.

Seeking clarification in writing vs. over the phone

An institution is permitted to clarify a request by phone or in writing.  Both methods have advantages.  Speaking to a requestor over the phone allows quick two-way conversation and can help the institution and requestor quickly agree on a new request formulation that the institution is able to move forward with.  However, requestors can occasionally be hard to reach, or may not have included a contact telephone number with their request (as they have no obligation to do so).  The advantages of seeking clarification by letter include: being able to propose new request wording (or even a few options) which the requestor may simply be able to accept; limiting the potential for time wasted trying to “catch” a requestor over the phone or playing “phone tag”; and finally, all of the benefits that arise from having a written record of communications between the institution and the requestor.  Problematically, an FOI Coordinator and a requestor may end a phone conversation with very different impressions of next steps.  A misunderstood conversation may lead to an FOI Coordinator simply waiting for further information from the requestor, while the requestor may think that “the ball is in the institution’s court”, i.e., that the institution is moving forward with their request.  This is fertile ground for a deemed refusal appeal that may have been avoided had the clarification process been conducted in writing rather than over the phone.  For this reason, it can be a good idea to confirm the contents of all clarification discussions by sending the requestor a follow-up letter letting them know the wording of the clarified request or what additional information is needed before the request can be processed.  Now, since a clarification letter is often going to be employed in any case (either to seek initial clarification, or to confirm the contents of a clarification discussion conducted by telephone), an institution might reasonably decide to make it their policy to seek initial clarification by letter by default rather than seeking clarification over the phone, perhaps making an exception for cases where there is a clear advantage to having a quick two-way conversation.

Clarification tips

As will be described in more detail in a future article, the 30-day deadline to respond with an access decision does not begin until the institution is in the possession of a valid request.  A request which requires clarification is not considered a valid request, and therefore, the “clock” doesn’t start counting down until a valid, clarified request has been obtained by the institution.  Once the request has been clarified, that is considered the day a valid request was first received by the institution.  That said, institutions should act quickly to respond to an unclear request with a request for clarification.  A requestor who has submitted a request is likely to assume the request is valid and being processed in the normal course until they hear otherwise.  That means that after 30 days have passed, the requestor may well issue a complaint or even an appeal on the basis of a deemed refusal.  On appeal, IPCO will be charged with deciding whether the request met the clarity requirements under FIPPA/MFIPPA.  In the worst case, IPCO may decide that the request was sufficiently clear after all, and make a finding that the institution incorrectly refused the request.  But even in the best case, IPCO is likely to take issue with an institution’s failure to meet its obligation under s.24(2) of FIPPA or s.17(2) of MFIPPA to clarify the request within a reasonable timeframe.

When clarifying a request, it can be helpful to let the requestor know what kinds of records may be available and of interest.  The process of seeking clarification can also be a good time to inform the requestor about potential fees involved in processing a request.  An FOI Coordinator might, as part of seeking clarification, ask the requestor whether they are seeking one set of documents or another.  When this question is posed, it is natural for requestors to simply ask for “everything”.  Helping the requestor understand the costs and time involved in responding to a very broad request can be the key to encouraging the requestor to think about what records they are most interested in and may even result in the request being narrowed at the same time it is clarified.

Narrowing a request

We’ve just gone over when and how to clarify a request, that is, what to do when a request is received that is too vague or open-ended to process without first obtaining clarification about what the requester really intended.  Now, in this part of the article, we’re going to discuss when it is appropriate to attempt to narrow a request.

Sometimes a request is valid, however it captures an extremely large number of records—often far more than most requestors would reasonably contemplate asking for.  In such cases, it can be to the advantage of both the institution and the requestor for the institution to contact the requestor and ask them to narrow their request.

Here are a few examples of requests which, while valid in a formal sense, would be worth getting in touch with the requestor to attempt to narrow down:

Request #1:

“All emails, correspondence, letters, messages, voicemails, phone records, working documents, memorandums, RFPs, RFQs, responses, briefs, reports, and audio/visual presentations relating to RFP 2018-12345, or to or from or relating to BigVendor Inc., or to or from or relating to any officer or employee of BigVendor Inc., or to or from or relating to any other company that placed a bid on RFP 2018-12345 or to or from or relating to any of their officers or employees.”

Problem: This is a valid request, but could result in thousands of hours and tens of thousands of dollars or more in search and retrieval costs.  Perhaps the requestor used a standard template to formulate their request, or the requestor simply may not realize just how many documents they are asking for.  The last part of the request (“to or from or relating to any other company…”) may be a mere afterthought to the requestor, but the number of responsive documents,  and the work involved, may dwarf the documents responsive to the rest of the request.  The institution may have a long history with some of the “other companies” referred to in the request that the requestor isn’t aware of.  It may make sense to ask the requestor what they are really looking for and to see if they are willing to narrow their request.

Potential narrowed request:  All records in the procurement department’s RFP 2018-12345 file”

Request #2:

“All emails, letters or other messages and correspondence to or from employee John Smith” 

Problem:  John Smith may have twenty years of emails, letters and other messages implicated by this request, plus the institution may feel it needs to ask staff who communicate with John Smith to search through their records as well.  The requestor may be willing to agree to limit the search to a specific time period and/or a specific topic in order to get records back more quickly and keep search costs down.

Potential narrowed request:  “All emails to or from employee John Smith from January 1, 2018 to October 24, 2018 relating to Toronto’s municipal elections.” 

In both cases above, getting in touch with the requestor is very likely to result in a more specific request with a significantly reduced scope and associated costs.  For the first example above, it’s quite likely the institution has an actual file or collection of documents dedicated to the relevant RFP, and it may be able to offer to turn that over to the requestor (after reviewing the records and applying relevant FOI exemptions) very quickly and with relatively little processing cost.  In the second example, finding out more from the requestor about why they are making the request can help the institution and requestor agree on a more suitable request.  For example, is there a time period that the requestor is specifically interested in?  Is there a particular topic or event that is of interest to the requestor?

Seeking a narrowed request has many similarities with seeking clarification of a request, but there are a few important differences.  First of all, because the initial request is valid, the 30 day response deadline begins on the day the initial request is received, not the day the request is narrowed.  So if it takes 10 days to agree with the requestor on a narrowed request, that will leave the institution with only 20 days to respond with an access decision (subject to any extension requests or other justifications that would allow a longer deadline).  Secondly, unlike clarification requests, FIPPA and MFIPPA do not require institutions to attempt to narrow requests.  Institutions are free to process requests as written.  That said, in practice, moving forward with an overly-broad request will often result in significant effort being wasted in the preparation of a lengthy and large fee estimate which is very likely to be rejected by the requestor (or even appealed to IPCO), causing unnecessary delay and frustration.  If a request is extremely broad, it is a best practice to attempt to secure the cooperation of the requestor to narrow the request, explaining the potential for high costs and lengthy time frames.  In most cases, the result will be a narrowed request, leading to less work for the institution and lower costs and a more useful set of records for the requestor.  On the other hand, if the requestor rejects any attempts to narrow the request, the institution is in a better position to justify a high fee estimate.  If the fee estimate is appealed to IPCO, the institution will certainly raise the point that it attempted to work with the requestor to attempt to narrow and tailor the request but was rebuked.

Seeking to narrow a request in writing vs. over the phone

When seeking clarification of an otherwise invalid request, there are good arguments in favour of seeking clarification in writing in most cases, as described earlier in this article.  However, when seeking to narrow a valid request, the balance of convenience shifts in most cases such that it is usually a better idea to attempt to contact the requestor quickly by phone if possible.  First of all, the importance of a two-way conversation in this situation cannot be overstated – it can be extremely helpful to ask exactly what the requestor is hoping to find, and to attempt to work with the requestor to tailor a new request that keeps fees down and also gets a decision to the requestor in a reasonable timeframe.  A requestor may feel somewhat wary about an institution seeking to change their request; discussing the matter over the phone can help assuage their concerns.  Second, and perhaps just as important, are concerns around the response deadline.  If an invalid request requires clarification, then the 30 day deadline doesn’t begin until the request is clarified.  However, if an institution is seeking to narrow a valid request, the 30 day deadline runs starting on the day the request was initially received.  Sending a letter to the requestor and waiting for a response back can easily take up 10 days, and that is assuming the requestor responds on a timely basis.  An institution can be left scrambling if a response is received from the requestor close to the 30 day deadline, especially if the requestor refuses to accept any narrowing of the request.

In any case, as with clarifying a request, it is a good practice to send written confirmation to the requestor with the revised request to avoid any misunderstanding.

Narrowing tips

Just as with clarifying a request, when attempting to narrow a request, especially over the phone, it can be helpful to let the requestor know what kinds of records may be available and of interest to the requestor, and to inform the requestor about the potential fees involved in processing a request.  Helping the requestor understand the costs and time involved in responding to a very broad request can be the key to encouraging the requestor to think about what records they are most interested in and may help them decide to agree to narrow their request.

If a request seems overly broad, but the requestor refuses to narrow the request and won’t provide any justification or explanation as to why they are submitting such a large request, the institution may wish to consider whether the request is frivolous or vexatious under FIPPA s.10(1)(b), s.24(1.1), s.27.1, Reg. 460 s.5.1 or MFIPPA s.4(1)(b), s.17(1.1), s. 20.1, Reg. 823 s.5.1 as applicable.  Guidance on making this determination will be the subject of a future article.  Alternatively, the institution may simply proceed to preparing and sending a fee estimate to the requestor and, so long as the estimate is over $100, taking no further action on the file until the fee deposit is received (or an appeal is filed).  Also note that if a request is for a large number of records or necessitates a search through a large number of records and meeting the time limit would unreasonably interfere with the operations of the institution, under s.27 of FIPPA or s.20 of MFIPPA, it is open to the institution to issue a time extension to extend the basic 30 day deadline; more on this in a future article.

Deciding whether or not to ask a requestor if they would like to narrow their request is always a matter of judgment.  Any request for multiple records can theoretically be narrowed.  But unless the institution can explain to the requestor how they will benefit from narrowing their request (in terms of significantly lower fees, less time waiting, or a better, more relevant set of disclosure documents), the requestor isn’t likely to agree to narrow their request, and may find the proposition bothersome.

Final Note: Clarifying vs. Narrowing

If you’re having trouble remembering the difference between clarifying a request and narrowing a request, just keep this in mind:  Clarifying is for requests that are invalid, i.e., what the requestor is asking for doesn’t make sense, or lacks enough detail to move forward with.  The purpose of asking a requestor for clarification is to turn an invalid request into a valid one.  Narrowing, on the other hand, is for requests that are valid, but overly broad.  If the initial request provides sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the requested records, then the request doesn’t need clarification.  But if fulfilling the request would take a large amount of time and resources and many of the resulting records aren’t likely to be of interest to the requestor, then the request may be a good candidate for narrowing.

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

 

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