When you have received a Freedom Of Information (FOI) request from a lawyer, there are a few things to consider:
Is your organization obligated to respond to FOI requests?
An earlier article, Do I have to respond to a Freedom Of Information (FOI) request?, may help you answer this question. Keep in mind this guidance applies only to Freedom Of Information requests; lawyers may have other grounds to request or even to compel the disclosure of information from your organization.
Is the request for general records, or for personal information?
Requests for General Records
Under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), anyone can submit a request for general records. Therefore, if a request is for general records, in most cases it will be of no relevance whether the lawyer is acting on behalf of a client, or for their own purpose or interest. Occasionally, an individual may decide to act through a lawyer to provide a layer of anonymity when making a general records request. Since requests for general records should be treated the same no matter who is requesting the information, a request for general records from a lawyer should be processed in the same fashion as any other request from any other individual.
Requests for Personal Information
On the other hand, if the lawyer is requesting personal information, the lawyer will need a legal basis for doing so. Most commonly, the lawyer will be requesting information with the consent of the individual whose information is being requested, but there are other ways a lawyer may exercise another individual’s rights and powers to their own personal information under FIPPA/MFIPPA, for example, under a power of attorney, or as the personal representative of a deceased individual. The previous article, Requests for Personal Information with the Consent of the Individual, provides more guidance on this topic.
“Consent” does not mean “Client”
Keep in mind that just because a lawyer has obtained the consent of another individual to obtain their personal information does not mean that the individual is the client of the lawyer, or that the lawyer is obligated to act in such individual’s best interests. A lawyer (or other individual) may be granted a consent for a business purpose, such as to conduct due diligence, or to confirm representations made by the individual. It is therefore important to obtain a copy of and carefully review the written consent that the individual has provided to the lawyer. A consent may set out a limited scope, such as allowing the lawyer to request only certain kinds of documents, or only documents within a certain date range. A consent may even set out the exact wording of the request that the lawyer has been authorized to make. A solicitor-client relationship (or lack thereof) between the lawyer and the individual will, to a great extent, determine the confidentiality and other obligations that the lawyer may have to the individual whose information is being requested. Unlike a request for general records, it may be relevant to ask the lawyer whether the individual whose information is being requested is also the client of the lawyer; getting a better understanding of the lawyer’s relationship with the individual may help the institution when interpreting the individual’s written consent and the FOI request itself.
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