Can requestors specify whatever format they want?
How should an institution respond to a request that specifies the format in which the requestor would like to receive the records? For example, an institution might receive a request for hundreds of pages of documents which are stored by the institution only in hard copy, but the requestor might ask that they be scanned and disclosed in a digital format (such as Adobe PDF). Or, inversely, an institution may keep electronic records, but the requestor may ask for printouts rather than electronic copies of the original.
Many institutions store a large number of records in hard copy only. And some institutions may prefer to provide requestors with printouts and/or photocopies no matter how the original records are stored. Regardless, it has become common for FOI requests to include a statement asking for the resulting disclosure to be provided on a CD-ROM, USB Stick or other electronic/digital medium. Some requests will even specify that the “original electronic versions” of records are to be disclosed if available.
The Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) contemplate that records may be shared with requestors in a variety of ways, including: allowing the requestor to view original records in person; providing the requestor with printouts or photocopies of requested records; providing the requestor with a CD-ROM containing an electronic copy of records; or even the production of a new record to be provided to the requestor based on a “machine readable” source (such as a database or other digital storage).
FIPPA and MFIPPA are silent on whether an institution must disclose records in the format specified by the requestor; however, a series of Information and Privacy Commissioner of Ontario (IPCO) decisions has made it clear that institutions are required to produce documents in whatever format is specified in the request, so long as it is reasonably practicable for the institution to do so.
Order M-1153 (City of Kanata)
In Order M-1153 (City of Kanata) decided October 16, 1998, the requestor asked the City of Kanata for electronic versions of council minutes, documents concerning the City’s amalgamation, capital expenditures, descriptions of the physical assets of the City. The City informed the requestor that electronic versions of such documents did not exist, and therefore the City would be providing responsive documents in paper format. The requestor appealed the City’s decision to deny access to the records in an electronic format as requested. Adjudicator Donald Hale considered whether the City should be compelled to change the format of records that it kept in hard copy to the electronic format demanded by the requestor. The City noted that it did not have the technological capability in-house to “scan” each of the responsive records in their hard copy form in order to create the requested electronic records; instead, the City would be required to send the documents out to be scanned by a commercial firm, at great expense. Adjudicator Hale concluded that even if the City did not have the ability to convert the documents “in-house”, it was reasonably practicable for the City to make the requested records available to an outside firm to effect the transfer from paper copies to the desired electronic format through the use of scanning technology.
Summarizing an institution’s obligations under FIPPA and MFIPPA to provide records in the format requested, Adjudicator Hale noted:
One of the purposes of the Act, as set forth in section 1 (a), is to provide the public with a right of access to information under an institution’s control. Where a requester seeks access to records in a format different from that in which the records now exist, and it is reasonably practicable for the institution to effect the change in format, the institution is required to do so. By way of summary, I find that, in the absence of some extraordinary circumstances, it is reasonably practicable for an institution to provide electronic copies of records which exist only in paper form through the use of scanning technology. [emphasis added]
Adjudicator Hale also noted the institution would bear the onus of demonstrating that providing the information in the requested format was not reasonably practicable:
In accordance with the views expressed by former Commissioner Wright in Order P-233, I find that the City bears the onus of demonstrating that it is not reasonably practicable for it to provide access to the information sought by the appellant in the electronic format which he has requested.
The City could not convince IPCO that providing the records in the format requested was not reasonably practicable. Therefore, the City was obligated to provide the requested records in an electronic format as demanded by the requestor—even if this required the City to scan, or arrange for the scanning of, documents that only existed in hard copy.
Crucially, however, the City was not ordered to cover the costs of scanning the documents. With respect to the fees to be charged to the requestor, Adjudicator Hale noted:
Although the issue of fees is not before me and I cannot, therefore, make a finding in this regard, the City may wish to take the position that it is entitled to rely on the fee provisions of the Act and the regulations, and on this basis provide the appellant with an interim fee estimate of the cost to effect the transfer of the records in accordance with the principles in Order 81 of this office, prior to actually incurring this expense.
In other words, if the City was required to pay a third party to conduct the scanning service, it was open to the City to rely on the fee provisions contained under MFIPPA to charge the requestor for the cost of such service.
Order PO-2424 (Workplace Safety and Insurance Appeals Tribunal)
In Order PO-2424 (Workplace Safety and Insurance Appeals Tribunal) decided October 25, 2005, Adjudicator Hale applied the logic of his earlier decision in Order M-1153 to compel a provincial institution to convert written documents to audiotapes which the requestor could listen to instead of having to read:
In my view, a requester is entitled under the Act to request access to information in whatever reasonably practicable format he or she wishes, subject to the fee provisions in section 57(1). In the present situation, I find that the appellant is entitled to request access to information in the format sought and WSIAT is obliged to provide them to him in that manner in accordance with section 48(3) (b).
As in Order M-1153, the institution was Ordered by IPCO to produce the documents in the requested format; however, the institution was again permitted to rely on the fee provisions of the relevant Act with respect to charging the requestor for the costs of converting such documents to the format requested.
Are there any exceptions?
If an institution isn’t keen to provide records in the format specified by the requestor, there are four approaches it can consider:
Obtain the consent of the requestor to a different format
An institution is always free to collaborate with the requestor and attempt to obtain the consent of the requestor to modify their request. If a requestor has asked that paper records be provided “in an electronic format”, it may be as easy as explaining to the requestor that the requested records are held only in hard copy, and the institution may be able to provide photocopies of the records more quickly than it could provide scans of such records.
If a request asks for electronic disclosure and the institution actually keeps electronic versions of the requested records but would prefer to disclose printouts, the institution may wish to explain to the requestor that there are potential privacy and confidentiality concerns around disclosing original electronic records which may introduce uncertainty and delay in releasing the documents to the requestor, but that such issues could be avoided if the requestor would be willing to accept printouts, which should lead to the requested documents being disclosed more quickly.
Ignore the format request
This is generally not a recommended approach, as it is better from both a public service and a relationship perspective to attempt to reach out to the requestor to obtain their consent to receive records in a format different from the one specified in their original request. However, in some circumstances, the institution may consider simply providing the records in a format different from the one set out in the request, without notifying the requestor ahead of time. Such circumstances may include:
- The request uses “soft” or “preference” language to set out a format preference. For example, a request that states “PDF versions preferred” or “electronic versions if available” may give the institution more leeway to provide paper disclosure.
- The requestor has been difficult to reach, or the institution has no way to contact the requestor other than a mailing address. The basic 30-day deadline does not leave an institution with much time to make multiple attempts to reach a requestor by telephone or by email, or to attempt to obtain the requestor’s consent to a modified request by regular mail.
If an institution is contemplating simply ignoring the requestor’s format preference, the institution should consider its potential justifications for doing so. (E.G., are the original documents not kept in the requested format? Are there potential privacy or confidentiality issues with the requested format?) Regardless, ignoring the format request always comes with the risk that the requestor will appeal the institution’s decision to release documents in a format other than the one requested. And keep in mind, in any appeal, IPCO is unlikely to sympathize with an institution that has simply ignored the requestor’s instructions.
Raise the costs issue
In some cases, the requested format will come with significant costs that the requestor may not have anticipated. The most obvious example is when an institution holds electronic documents that it would prefer to disclose on a CD-ROM or USB stick, but the requestor has asked that the documents be provided as printouts. The requestor may not realize that receiving the documents in a printed format rather than on a CD-ROM could add hundreds or even thousands of dollars to the cost of their request.
Conversely, a request for paper documents to be disclosed in an electronic format can also come with unexpected costs, as institutions are allowed to charge for the costs involved in scanning or otherwise converting the documents to the requested format. If an institution needs to hire a scanning service, or to employ outside IT professionals to ensure metadata and hidden data are stripped from documents to prepare records for disclosure, such costs may be chargeable as fees to the requestor. Further details on the potential costs involved in preparing electronic records for disclosure and the fees that may be charged to the requestor for such work will be set out in a future article.
If the requestor’s preferred format will significantly raise the fees they will be charged for the request, it can be a good idea for the institution to send the requestor a cost estimate which shows the additional costs involved in providing the records in the format requested (especially if the cost estimate surpasses the $100 threshold and therefore results in a “stopped clock”). Such additional costs might include the cost of digital media such as a CD-ROM or USB Stick, and potentially the estimated costs of outside IT services required to scan and/or otherwise process the requested records. The same cost estimate could also show the reduced fees that the requestor might be charged if the requestor were willing to receive the records in the format preferred by the institution, and allow the requestor to respond with their choice between the two format options.
Is the requested format reasonably practicable?
According to the relevant IPCO decisions, an institution is obligated to produce records in the format requested by the requestor only if it is reasonably practicable for the institution to do so.
A recent IPCO decision provides some guidance on what the term “reasonably practicable” means, in the context of a requestor who asked to review an original record in person rather than receiving a copy:
Order PO-3851 (Ministry of Community Safety and Correctional Services)
In Order PO-3851 (Ministry of Community Safety and Correctional Services) decided June 4, 2018, the institution had disclosed a copy of a 911 emergency call recording, but the requestor was dissatisfied with the audio quality of the copy disclosed and wished to hear the original recording in person.
Adjudicator Steven Faughnan helpfully set out circumstances in which an institution may decline to accept a requester’s demand to examine records in person on the basis that it would not be reasonably practicable:
Some examples of why it might not be reasonably practicable to comply are:
– if a record is very large;
– if the reproduction of a record may be unduly burdensome on the institution; or
– if only part of the record is subject to disclosure and it is not feasible to allow inspection without disclosing the protected parts of the record as well.
Adjudicator Faughnan agreed with the Ministry’s position that it would not be reasonably practicable for the Ministry to allow the requestor to attend in person at the Ministry’s 911 Communications Centre in person, citing security concerns among other justifications.
When is it not reasonably practicable for an institution to disclose records in the format requested?
So when would it not be reasonably practicable for an institution to disclose records in the format requested? Presumably one situation that would fall into this category is when the document set is extremely large, and the institution is only willing to provide the documents electronically via USB or CD-ROM rather than as printouts. A single CD-ROM can contain documents that would take hundreds of thousands of pages to print.
Another situation where it might not be “reasonably practicable” to provide a printed document is where the document can be easily viewed and navigated electronically, but is infeasible to print legibly. This may be the case for a large, detailed map, or a very high-resolution composite photograph.
Metadata and Hidden Data?
Could the potential existence of metadata and hidden data ever be used as a justification for not disclosing the original electronic versions of documents? As discussed in the last article, “I thought we deleted that!” Metadata and Hidden Data, many kinds of electronic files, including Word documents, Excel documents, PDF documents, and various image file formats, may contain hidden personal and/or confidential information that is available to anyone who has a copy of the file and knows how to get to that information—potentially using software tools that are not available or are not known to the disclosing institution. In other words, unless an institution takes steps to remove the metadata and other hidden data from its electronic records, the institution is taking on the risk of disclosing personal and confidential information that it never intended to disclose.
In the Metadata and Hidden Data article, I noted there were two main methods of ensuring metadata and other hidden data are removed from electronic records before such records are disclosed: The first option is to use specialized software tools to remove such data; the second option is to simply use paper disclosure (printouts) rather than providing electronic disclosure to the requestor. Institutions that do not have the technical knowhow or specialized software tools to remove metadata and other hidden data may consider taking the position that it is not reasonably practicable for them to disclose some or all of their electronic records except as printouts.
Of course, any institution taking this position would be exposed to a potential appeal when the requestor does not receive the disclosure in the format requested. Although IPCO has not issued a decision on this specific issue, I made my case in the last article that IPCO may hesitate before “ordering out” original electronic documents, as doing so might well result in IPCO itself being directly responsible for a breach of privacy or confidentiality.
Institutions are required to produce documents in whatever format is specified in the request, so long as it is reasonably practicable for the institution to do so.
If an institution would rather not disclose documents in the requested format, the institution may wish to: 1. attempt to obtain the requestor’s consent to disclose records in a different format; 2. issue a fee estimate illustrating the cost consequences of the requestor’s preferred format; 3. take the position that the requested format is not reasonably practicable for the institution; or, in certain situations, the institution might even 4. simply ignore the format preference set out in the request.
Finally, institutions should be aware of the possibility that their electronic records may contain problematic metadata and other hidden data, and should consider how to best address this concern in the context of requests for electronic disclosure. For institutions who lack the technical tools and knowhow to ensure their electronic disclosure is clean, one potential solution might be to implement a policy of only disclosing printouts rather than disclosing electronic records, on the basis that providing electronic disclosure in such circumstances is not reasonably practicable. However, whether IPCO would affirm such a policy has yet to be seen.
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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
Information and Privacy Commissioner of Ontario, Decisions: https://decisions.ipc.on.ca/ipc-cipvp/en/nav.do