The Freedom of Information and Protection of Privacy Manuals

the duenna's return (william luson thomas)

Wait — there’s more than one?

When I was asked to manage the FOI program at the Toronto 2015 Pan Am Games, I spent the first few weeks interpreting FIPPA directly using only David Goodis’s excellent annotated Act.  My life got a whole lot easier when I discovered the Ministry of Government Services’ Freedom of Information and Protection of Privacy Manual.  Often referred to as the “FOI Manual”, it is a general guide to the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) as well as the administration of these Acts.

Most of Ontario’s FOI professionals are aware of the FOI Manual, but many may not be aware that two versions of the manual are available, each with its own strengths and weaknesses.  The current version of the FOI manual is the one I linked to above — and it’s still the one I tend to go to first when I’m looking into an issue, as I know it will include the most recent treatment of issues and incorporate more recent decisions from the courts and from the privacy commissioner.  However, the old version of the FOI Manual is still available online, and I highly recommend that FOI professionals keep it in mind as another helpful resource for understanding and administering the Acts.

The current FOI Manual is 239 pages, while the old version is much shorter: about 109 pages when printed.  (I’ve kept a PDF version of the old manual saved to my hard drive in case it ever disappears from the web.)  You might assume that all of the content from the old version would have made it into the new one, but it turns out there is a lot of useful information found in the old version that didn’t make it into the new one.

The old version is written in a much more direct voice, has relatively more concrete examples, and isn’t afraid to give specific advice verging on opinion, even when such advice may not be applicable in every circumstance.  For example, under its discussion of clarification/narrowing, the old version offers the following example:

A requester might ask to see “all the minutes that the Hydro-Electric Commission has”. Does this mean all the board minutes, the committee minutes, or both? For what year?

In the example above, the requester may be interested in only the board minutes for a particular date or date range, not all of the minutes that exist. By clarifying the request the institution could save considerable time searching through records and preparing them for release. It would also save the requester considerable costs if a fee is charged.

In contrast, the guidance provided with regard to clarifying and narrowing requests in the current version of the FOI Manual does not provide any specific example.

As another example, under the heading “Receipt of Request and Opening Request File”, the old version of the FOI Manual states:

The first step an institution should take when a request is received is to stamp the date on the request. This is important because of statutory time requirements. Requests arriving at an institution should be routed quickly to the access and privacy coordinator to ensure that time is not wasted in the internal mail process. As a courtesy, a notice should be sent as soon as possible to the requester acknowledging receipt of the request.
Once the person responsible for dealing with access requests receives the request, a file should be opened. The file cover can be printed with information that will help route the file if it must be sent to other divisions of the institution. If return dates
are filled in on the folder this will help keep people aware of the time deadlines. The file folder can also serve as a record of the decisions taken with respect to the file. To help track requests for access to records it is a good idea to have a different
coloured folder for freedom of information and privacy matters.

A tracking and recording form is useful to record the actions taken to process a request. It allows the institution to know at a glance how a request was processed and what decisions were made with respect to the file. Also, by keeping a recording and tracking form, it is evident what has to be done to complete the file.

This is direct and practical advice.  My preference for this kind of guidance reflects my preference for “opinionated” content — perhaps “stamping a date” on a request might not make sense for every institution (e.g., some will use software instead, or may track the date in some other way) but it at least provides a reasonable way to process files, and FOI professionals can decide for themselves whether or not adopting each specific suggestion makes sense for in their practice.

In contrast, here is the equivalent section from the current FOI Manual:

The legislation requires that requests be received by the institution in writing and accompanied with a $5.00 application fee. For practical reasons, most institutions can only receive requests by mail or in-person delivery. Some institutions may have the ability to receive requests online or via fax.

Once a request is received, Coordinators and their staff should:

• Review the request to ensure the request is complete, which means the request is in writing, includes the $5.00 application fee, and provides sufficient detail.

• Open a file, assign a file number, and calculate the 30 day time limit for a response. Note that if the due date falls on a Saturday, Sunday or holiday, the due date is moved to the next business day.

• If the institution is using an electronic case file management system, update the system.

• Make copies of the original request to work with.

• Make copies of any administrative forms to put in the file.

• Notify the program area or a program contact if known, of a request.

All of this is technically correct, but it doesn’t provide the same kind of detailed guidance about how to set up a new FOI file.

Finally, there are useful sections of the old FOI Manual that were omitted entirely from the current version.  One of my favourite and most practical sections from the Old FOI Manual is the “Checklist for Processing a Request”, which is an especially useful resource for new FOI professionals who may not have much experience yet with processing FOI requests.

If I were training someone new to the field, I might suggest that they start with the Old FOI Manual — at half the length of the current version, it provides an excellent overview of the FOI request process.  It is also arguably a better resource for anyone starting a new FOI program as well, as it gives good, practical advice on how to open a new file and a practical system for managing the information related to a request.  In contrast, in my opinion, the current FOI Manual has more of a “written by committee” feel, where it tries to give advice that is applicable to every circumstance while not necessarily being as helpful or useful.

None of this is intended to disparage the current FOI Manual — it’s still my go-to resource, and it may be the preferred option for FOI professionals with a few years of experience behind them.  The template letters in the current FOI Manual are extremely well-written and useful; the formatting in the current version is much improved, helping its readability; and in multiple sections, the current FOI Manual is more “formally correct”, e.g., not conflating clarifying a request with narrowing a request, and not assuming the use of specific file tracking systems, or that paper systems will be used instead of software.  Plus, of course, it’s always better to rely on the most recent guidance, other considerations aside.  I highly recommend the current FOI Manual to all FOI professionals in Ontario.  I just hope I’ve also convinced you to take a look through the old version as well — and perhaps to print or save yourself a personal copy in case the Ministry ever decides to no longer publish the old version online!

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 Manual (CURRENT VERSION)

Freedom of Information and Protection of Privacy Manual (OLD VERSION)

Annotated Ontario Freedom of Information and Protection of Privacy Acts by David Goodis

Published by Justin Petrillo

I have created the FOI Assist™ software to help Ontario’s provincial and municipal government institutions of all sizes track and respond to Freedom of Information (FOI) requests. For most of my career I have been a lawyer, advising clients on commercial, intellectual property and FOI/privacy issues. From 2013 to 2015, I managed the FOI program for the Toronto 2015 Pan/Parapan Am Games Organizing Committee while serving as Legal Counsel to the Games. Prior to becoming a lawyer, I obtained a computer science degree and worked as a software developer at several well-known technology companies.

Leave a Reply

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

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

Facebook photo

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

Connecting to %s

%d bloggers like this: