Stop the clock! How different actions affect the deadline

49.95.870(3)

The guidance presented in this article is intended for institutions in Ontario responsible for responding to Freedom Of Information (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).

As noted in the previous article on how to count time and how to determine the initial 30-day deadline, under both FIPPA and MFIPPA, institutions have a basic 30-day deadline to respond to an incoming FOI request with an access decision.  In FOI terminology, the countdown to the initial 30-day deadline is generally referred to as the “clock”.  Different actions or events can cause the clock to start, stop, or can even extend the deadline to respond.

What does it mean if the “clock stops”?

When the “clock stops”, the deadline no longer approaches as each day passes.  Instead, the number of days until the deadline remains the same each day until the clock starts up again.  This frequently occurs when an institution is waiting for information or a fee payment from a requestor where the institution cannot proceed until the requestor responds; “the ball is in the requestor’s court”.   When an institution has no choice but to wait for the requestor to move the matter forward,  it would be unfair to count time against the institution.

The basic 30-day deadline to answer a request starts running the day the request is received.  So in the normal course, after seven days, there would be 23 days left until the deadline.  If an institution issued a fee estimate of over $100 and requested a 50% deposit from the requestor on this day, the clock would immediately stop until the deposit was received.  The institution’s deadline would remain fixed at 23 days in the future in the meantime.  For example, on November 1, 2018, the institution’s nominal deadline would be November 24, 2018 (the earliest deadline possible if the fee deposit were to arrive before end of that day).  If no fee deposit arrived, then the next day (November 2), the institution’s deadline would advance by one day to November 25, 2018, and if another day went by without the fee deposit coming in, then the next day (November 3), the deadline would advance again, to November 26, 2018.  If the fee deposit finally arrived on November 3, the clock would resume and the new deadline would now be fixed as November 26, 2018.

Taking action

In the remainder of this article I am going to explain some of the different actions institutions can take after an FOI request has been received, and how each of these different actions either affects, or does not affect, the institution’s deadline to respond to the requestor with an access decision.

Action: Clarifying a Request

Clock does not start until request is clarified

Upon the receipt of a valid FOI request, government institutions are permitted up to thirty (30) days to respond to requests for information.  Sometimes, however, an institution will receive a request that does not meet the requirements of FIPPA/MFIPPA.  Both FIPPA and MFIPPA state that FOI requests 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 comply with the requirements of a valid FOI request and therefore does not create an obligation under FIPPA/MFIPPA to respond to the request with an access decision.

For the purpose of determining the institution’s deadline to respond, the 30-day clock does not start upon the receipt of an invalid request.  Instead, the 30-day clock starts only once a valid, clarified request has been received by the institution.  (Another way to think of this is that the file begins with the clock “stopped” with 30 days remaining to the nominal deadline.)

That being said, 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.  The process of getting in touch with the requestor to help them formulate a clear and unambiguous request is known as “seeking clarification” or “clarifying a request”.

The institution may call the requestor and come to an agreement on the wording of a clarified request.  In this case, the 30-day clock will start as of the date of the conversation in which the request was clarified.  Alternatively, an institution may request clarification by letter.  In that case, the clock will start on the day a response is received from the requestor with a valid clarification that is sufficient to allow the institution to proceed with the clarified request.  Likewise, a voicemail from the requestor which provides sufficient clarification to create a valid request will also start the clock running.

If an institution receives an invalid request which it holds onto and considers for a couple of days before sending out a request for clarification, those days do not count against the 30-day deadline – the “clock does not run” during the time the institution is considering an invalid request.  However, given that the institution has an obligation under FIPPA and MFIPPA to inform the applicant of the defect and offer assistance, the institution is not permitted to simply ignore the request or hold onto it indefinitely; a response to the applicant seeking clarification should be sent out in a reasonable timeframe.

See also previous article: Say what? Clarifying and narrowing requests

Action: Requesting payment of application fee or other formalities

Clock does not start until fee is paid

As described above, for the purpose of determining the institution’s deadline to respond, the 30-day clock does not start upon the receipt of an invalid request.  If a request is not in writing, or is illegible, or does not include payment of the $5.00 fee, then the request is not a valid formal FOI request.  The 30-day clock will start only once a valid request has been received by the institution which meets all of the required formalities under FIPPA s. 24(1) / MFIPPA s. 17(1).  In general, if it is unclear whether the requestor intended to submit a formal FOI request, or if it is clear that the requestor intended to submit a formal FOI request but failed to meet the requirements of a formal FOI request under FIPPA / MFIPPA, then it is recommended that the institution reach out to the requestor to inform them of the defects in their request that the requester will need to address before the request can be processed by the institution.  The defects that the requestor may be asked to remedy may include making payment of the $5.00 fee, setting out the request in writing, setting out the request legibly, and clearly stating that the request is being made under FIPPA / MFIPPA if the request does not otherwise make this clear.

Action: Narrowing a Request

Clock does not stop

If a request is valid, but captures an extremely large number of records, perhaps more than the institution believes the requestor would reasonably contemplate asking for, the institution is permitted to contact the requestor to ask them to narrow their request.  Because the initial request is valid, the requestor will generally not have any obligation to agree to narrow their request; however, many requestors will appreciate getting a heads-up early in the process that the request they have provided may have a much larger scope than the originally appreciated.  If the requestor is amenable to agreeing to a narrowed request, the result can be far less work for the institution, and lower costs and a more useful set of records for the requestor, delivered in a more timely fashion.

Seeking a narrowed request has many similarities with seeking clarification of a request, but in terms of the clock, there is an important difference:  Because the initial request is valid, the 30 day response deadline begins on the day the initial request is received, not on 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.  There is no basis in either FIPPA or MFIPPA to “stop the clock” during the time an institution is attempting to secure a requestor’s agreement to narrow a request.  This means that if an institution sends a letter to the requestor proposing a narrowed version of their request, the clock keeps running while the letter is in transit and until a response is received from the requestor.  For this reason, when attempting to narrow a request, in most cases it will be a better idea to attempt to contact the requestor by phone (rather than by mail).

See also previous article: Say what? Clarifying and narrowing requests

Action: Forwarding a request

Clock does not stop

FIPPA and MFIPPA create a scheme under which all institutions are expected to cooperate in order to provide records in response to FOI requests.  If a requestor sends a request to the wrong institution, and a different institution has custody or control of the requested records, the institution that received the request is not permitted to simply ignore or deny the request.  Instead, s. 25(1) of FIPPA and s. 18(2) of MFIPPA require the receiving institution to make inquiries to determine whether another institution has custody or control of the record.  If it turns out another institution does have the requested records, the institution is required to forward the request to the other institution and to notify the requestor that it has done so.  The deadline to forward the request is 15 days after the request was originally received.  Unfortunately for institutions, the clock does not stop at any point during this forwarding process.  Therefore, if an institution forwards the request 15 days after it is received, the institution to whom the request is sent will have only 15 days to respond to the requestor with an access decision (subject to any permitted time extensions that may arise).  In the spirit of cooperation between institutions, it is recommended that if an institution needs to forward a request, that the request be forwarded as soon as possible, in order to give the second institution a reasonable length of time to respond to the request.

Action: Transferring a request

Clock does not stop

Transferring a request is similar to forwarding a request, however in this case the institution who received the request generally does hold the requested records in its custody or control, however there is another institution, who generally also has custody or control of the requested records, and who is in a better position to make an access decision.  Generally, the institution to whom a request is transferred has a greater interest in the requested records and is therefore the more appropriate institution for making a decision on their release and/or the application of any exemptions under FIPPA/MFIPPA.

Similar to forwarding a request, deadline to transfer a request is 15 days after the request was originally received and the clock does not stop at any point during the transfer process.  If an institution transfers a request 15 days after it is received, the institution to whom the request is sent will have only 15 days to respond to the requestor with an access decision.  It is again recommended that if an institution determines that it needs to transfer a request, that the transfer be conducted as soon as possible in order to give the second institution a reasonable length of time to respond to the request

Action: Interim Fee Estimate

Under $100 – Clock does not stop

$100 or more – Clock stops so long as the institution requests a deposit

Requestors are expected to pay for some of the time and costs incurred by the institution in processing their request.  These costs are generally described in the institution’s access decision letter, and the institution is expected to collect such costs from the requestor before it provides the records requested.  To avoid spending time and costs on processing a request that the requestor may not be willing to pay for, and to give the requestor visibility into how approximately how much they will be expected to pay prior to being given access to the records they have requested, institutions are permitted to send requestors a fee estimate which sets out a preliminary description of the fees expected to be claimed by the institution from the requestor as payment for processing the request.

An institution is always permitted to provide the requestor with a fee estimate, however, if the expected amount of fees is equal to or over $25, then FIPPA s. 57(3) and MFIPPA s.45(3) make it mandatory for the institution to send the requestor a fee estimate.  In terms of the institution’s deadline to provide an access decisions, sending a fee estimate has no effect on the clock unless the estimated fees are $100 or more.  If the fees the institution expects to charge the requestor are at least $100, then the institution is permitted (under FIPPA Reg. 460, s. 7(1) and MFIPPA Reg. 823, s. 7(1)) to require a 50% deposit before taking further action processing the request.  In this case, if the institution has requested a fee deposit, the clock stops and the institution is permitted to take no further action on the request until the fee deposit has been received from the requestor.  (In practice, if the institution believes the requestor will pay the fee deposit, it may wish to continue to process the request while it is awaiting payment of the fee – however, in doing so, the institution takes the risk of spending time and costs that it may never recover from the requestor if the requestor decides to abandon or narrow the request rather than pay the requested fee.)

In practice, as a way of managing resources, for larger files where the estimated fees are over $100, getting a fee estimate out to the requestor quickly is one of the best tools an institution has to ensure it does not waste time searching and reviewing records which the requestor may have little interest in paying for — a good portion of FOI files are either abandoned or narrowed by requestors at the fee estimate stage.

Action: Notice to Affected Person (also known as a 3rd Party Notice)

Deadline changes to 30 days after the notice is issued; clock does not stop

The disclosure of certain records could affect the interests of third parties.  If the records requested may contain trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence by a third party (per FIPPA s.17(1) / MFIPPA s.10(1)); or the records may contain personal information whose disclosure might constitute an unjustified invasion of personal privacy (per FIPPA s.21(1)(f) / MFIPPA 14(1)(f)) then the institution has an obligation to notify the affected third party (the company or individual who supplied the information in confidence or whose personal information is in jeopardy).  This notice is intended to give the affected individual the opportunity to make submissions in which they provide their position on the disclosure of the information.

In most cases it would be impossible to conduct this consultation within the basic 30 day deadline.  For this reason, s. 28 of FIPPA and s. 21 of MFIPPA provide for an automatic 30 day extension to the deadline if the institution is required to send out notices to affected persons.  More details on the process of giving notice to affected persons will be provided in a future article.

Time Extensions

Deadline moves as described in the time extension; clock does not stop

Finally, institutions are given the discretion to extend the basic 30-day deadline if the 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; or if consultations with a person outside the institution are necessary to comply with the request and cannot reasonably be completed within the time limit.  (See FIPPA s. 27 and MFIPPA s.20)

The legislation does not indicate how long of a time extension an institution is permitted to issue; rather, it simply states that the time extension must be “reasonable in the circumstances”.  Institutions should understand that if a requestor believes a time extension is unreasonable, the requestor may appeal to the Information and Privacy Commissioner of Ontario (IPCO), where an adjudicator will compare the proposed time extension to previous time extensions granted or denied in previous IPCO decisions and judicial reviews.  IPCO’s decisions are the best source of information for what length of time extension may be appropriate in given circumstances.  In practice, a time extension of a couple of weeks is never likely to be appealed; the appeal process itself would generally take much longer.  However a brief review of IPCO decisions reveals that appeals involving time extensions of between three months and a year are common.

Can an institution issue multiple time extensions?

This issue is not dealt with explicitly in either FIPPA or MFIPPA but it has come up as an issue in a number of IPCO decisions.  An influential early decision dealing with this subject was issued by Tom A. Wright, who then held the Privacy Commissioner of Ontario.  In IPCO Order P-234, Commissioner Wright noted that he was “concerned with the institution’s use of two separate time extensions.  Generally speaking, it is my view that an institution, when assessing the time and resources it will need to properly respond to a request, must decide within the initial 30 day time limit for responding to the request, the length of any time extension it will need.”  This passage has been cited favourably by IPCO in its more recent decisions.  It seems likely that additional time extensions issued by an institution after the issuance of an initial time extension will be viewed in an unfavourable light in any appeal.  Institutions should therefore do their best to ensure that their initial time extension gives them sufficient time to complete the entire FOI request and should generally avoid issuing any additional time extensions after the first.

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

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

Municipal Freedom of Information and Protection of Privacy Act, R.R.O. 1990, REGULATION 823 (GENERAL) https://www.ontario.ca/laws/regulation/900460

Information and Privacy Commissioner of Ontario (IPCO) Decisions https://decisions.ipc.on.ca/ipc-cipvp/en/nav.do

IPCO Order P-234 https://decisions.ipc.on.ca/ipc-cipvp/orders/en/128075/1/document.do

Related Articles:

How to count time and how to determine the initial 30-day deadline

Say what? Clarifying and narrowing requests

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s