Why do requestors ask for electronic versions of records?

In this article, FIPPA and MFIPPA refer to Ontario’s Freedom of Information and Protection of Privacy Act and Municipal Freedom of Information and Protection of Privacy Act, respectively.

There are a number of reasons that a requestor might ask an institution to disclose records digitally rather than in hard copy:

1. The requestor is hoping to avoid the fees that FIPPA and MFIPPA require institutions to charge requestors on a per-copy basis for photocopies and printouts, as well as to reduce or eliminate any associated shipping charges;
2. The requestor is hoping to receive the requested documents in a format that is easier to handle physically (in some cases, to avoid having to receive and store banker’s boxes of documents);
3. The requestor is hoping to receive the requested documents in a format that is easier to navigate and search using a computer or other device;
4. The requestor is hoping to receive the requested documents more quickly;
5. The requestor is hoping to receive additional information (such as “metadata” or other hidden information) that may not be included on the paper version of the record.

In some cases, an institution may prefer to disclose paper copies of the requested records, but the request itself may expressly state that the requestor desires to receive electronic versions of the records.

The institution’s reasons for preferring to provide paper versions of records may include:

1. The original records exist only in hard copy, and the institution does not have the necessary equipment to efficiently convert the records to a digital format;
2. The original records exist only in hard copy, and converting the records to a digital format would require additional time and/or expense;
3. The institution’s internal FOI processes and staff training are based on working with hard copies of documents;
4. The institution does not have appropriate software systems to efficiently manage, sort, categorize and securely redact electronic documents, or the institution simply finds hard copies easier to manage, sort, categorize and securely redact as necessary;
5. The institution is concerned about additional information (such as “metadata” or other hidden information) that may inadvertently be disclosed as part of the digital version of a record.

Although these are all sensible reasons from the perspective of the institution, these reasons do not necessarily serve as sufficient justification to simply ignore the requestor’s wishes to receive documents electronically.

Obtaining the requestor’s consent to receive paper copies

If an institution has a strong preference to provide the requestor with paper copies of the requested records rather than electronic copies, it is generally a good idea to attempt to obtain the consent of the requestor to paper disclosure rather than simply refusing to provide the records electronically.  Otherwise, as with any FOI-related decision of an institution, the requestor may appeal the institution’s refusal to provide records in an electronic format to the Information and Privacy Commissioner of Ontario (IPCO), who may order the institution to provide the records in the requested format.  And, as explained in the previous article “Do institutions have to provide electronic versions of records?”, institutions are required to produce documents in the format specified in the request so long as it is reasonably practicable for the institution to do so.

However, it is always open to the institution to get in touch with the requestor to ask why the requestor has requested digital versions of the requested documents, and to check whether the requestor would be willing to receive the documents in hard copy instead.

The process of asking a requestor to agree to receive paper copies instead of electronic copies is similar to the process of narrowing a request.  Requestors will generally agree to narrow a request if they can be convinced that it is in their interest to do so, e.g., that the narrower request will result in the requested documents being disclosed to the requestor more quickly and/or at a lower cost.

Let’s now go through the main reasons that a requestor may be seeking electronic versions of records, and potential responses an institution might be able to offer that may lead to a requestor agreeing to paper disclosure instead:

1. The requestor is hoping to avoid the fees that FIPPA and MFIPPA require institutions to charge requestors on a per-copy basis for photocopies and printouts, as well as to reduce or eliminate any associated shipping charges

A requestor may be under the impression that digital disclosure is much cheaper than paper copies.  After all, FIPPA Regulation 460 and MFIPPA Regulation 823 set the charge for printouts and photocopies at 20 cents per page, so for 2,500 pages of documents, the requestor faces a fee of $500 for printing costs alone.  Whereas the same 2,500 pages can easily fit on a single CD-ROM, to which the regulations assign a fee of only $10.  What the requestor may be not realize is that there may be additional labour involved for the institution to prepare the CD-ROM which may be charged to the requestor as time spent by the institution preparing the record for disclosure.

As noted in Order PO-3621 (Ministry of the Environment and Climate Change), decided June 17, 2016, the costs of scanning any paper documents could be charged to the requestor in addition to the $10.00 fee for the CD-ROM:

Section 6.2 of Regulation 460 indicates that the cost for providing records on CD is $10.00 for each CD. Regulation 460 does not, however, address costs associated with scanning records for disclosure on CD. Previous orders examining this issue have determined that the permissibility of charging photocopying fees for scanning records depends on the current format of the records.  If the records are currently available in electronic format, it is expected that the institution copy them directly to CD for disclosure without the need to charge fees other than the prescribed $10.00 for each CD.  If the records are in paper format, scanning those records in order to provide the information on CD has been considered a necessary component of producing the records in the CD format sought by the appellant.

And in Order MO-2577 (Municipal Property Assessment Corporation) decided December 8, 2010, the institution asserted that the limitations of its computer systems meant that the institution could not transfer the requested information onto a CD without first printing it out.  The institution therefore argued it should be permitted to charge the requestor $43.80 for printouts it would be required to make in order to put the requested information onto a CD.  Adjudicator Diane Smith upheld the institution’s fee of $43.80 for paper copies, despite the records ultimately being provided to the requestor on CD, on the basis that “scanning paper records in order to provide the information on CD was a necessary component of producing the paper records in the CD format requested by the appellant.”  So, in this case, the requestor paid more to receive the requested documents on CD than if the requestor had been willing to accept paper copies.

2. The requestor is hoping to receive the requested documents in a format that is easier to handle physically (in some cases, to avoid having to receive and store banker’s boxes of documents)

Sometimes, letting the requestor know more about what they should expect to receive can help assuage their concerns here.  The requestor may be worried about receiving thousands of pages when in reality the institution knows the disclosure is likely to be only a few pages.  And even if the disclosure is a few hundred pages, the requestor might be persuaded of the convenience of receiving a printed copy from the institution rather than having to print it themselves.

3. The requestor is hoping to receive the requested documents in a format that is easier to navigate and search using a computer or other device

The requestor may expect that receiving documents on CD-ROM implies that they will have useful file names, and be searchable using computer tools, such as the “Find” features in Microsoft Word, Microsoft Excel, and Adobe Acrobat.  What the requestor may not realize is that for scanned PDF copies, the file names assigned to such scans may be unhelpful, and the “Find” feature is usually unavailable.  And even for documents stored electronically, including Word, Excel and PDF documents, an institution may routinely process documents before they are disclosed in order to remove metadata and/or to redact content, and such processing may result in documents that are the functional equivalent of scanned paper copies.

4. The requestor is hoping to receive the requested documents more quickly

A requestor might think that by asking for documents to be disclosed on a CD, the requestor will receive them much more quickly because the institution can eliminate the time that would normally be spent printing and copying documents and preparing them for shipping.  If the institution is able to explain to the requestor that these final steps required for hard copy disclosure often represent only a small fraction of the work that goes into an FOI request, and that the requestor is unlikely to receive the documents any faster on CD than on paper, the requestor may no longer have a preference as to which format the documents are provided in.  And of course, in some cases, providing documents on CD may take longer than providing paper copies, such as when the documents must first be printed or copied and then scanned in order to get them onto a CD (as in Order MO-2577 described above), or when the original electronic documents have to be inspected and/or processed to remove metadata and any other “hidden” information before being disclosed (a step that would not be necessary if paper printouts were being disclosed rather than the original electronic versions).

5. The requestor is hoping to receive additional information (such as “metadata” or other hidden information) that may not be included on the paper version of the record.

The electronic version of a record may include metadata and other hidden data.  For example, a digital photograph typically includes, at a minimum, a date and time stamp, and may also include information about the device used to capture the image, the location the image was captured, and potentially, information about the photographer.  When an electronic record is printed, in most cases, some or all of the metadata is removed from the hard copy of the record.  For example, a printed photograph will generally not include any information about the photographer or where the image was taken, although the date, time and filename will sometimes be preserved (this information is often printed on the back of a developed photograph).

Order MO-3533 (Town of Pelham), decided November 30, 2017, is one of the few IPCO decisions that explicitly considers the treatment of metadata in records being disclosure under FIPPA/MFIPPA.  The requestor was provided printed disclosure that included 85 pages of photographs with 2 photographs per page.  The requestor complained that the photographs as disclosed were not accompanied by any date or time information, which he expected would have been included as metadata in the original digital versions of the photographs.  The requestor therefore requested the complete metadata for each picture in the appeal.  Adjudicator Alec Fadel refused this request, finding that “if the Town had severed any information from the photographs, it would have noted so and cited an exemption under the Act for doing so. The appellant simply states what his expectation is, that the pictures would have metadata and requests same. I do not find that this is a basis to order the town to conduct a further search.”

This decision reveals that some requestors are indeed specifically concerned with obtaining information stored in the metadata of electronic records.  However, the decision also appears to indicate that IPCO may not force an institution to disclose such metadata, although on this later point, three important caveats must be considered:  First, it does not appear that the requestor expressed any preference for digital disclosure in their original FOI request; second, it was never established that the original digital photographs held by the Town actually included metadata (although given the nature of digital photography, one must assume the original digital photographs likely did contain metadata); finally, the Town did not indicate that any metadata was severed from the photographs, so if any metadata was removed, its removal may well have been unintentional (i.e., the Town may well have been oblivious as to the existence of metadata in the original digital photographs).

What if the requestor refuses to consent to paper copies?

I recommend reviewing the earlier article “Do institutions have to disclose electronic versions of records?”  As noted in that article, the general rule is that institutions are required to produce documents in whatever format the requestor specifies, so long as it is reasonably practicable for the institution to do so.  But 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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Related articles:

Do institutions have to disclose electronic versions of records?”

“I thought we deleted that!” Metadata and Hidden Data

Links to Resources:

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

FIPPA Regulation 460 https://www.ontario.ca/laws/regulation/900460

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56

MFIPPA Regulation 823 https://www.ontario.ca/laws/regulation/900823

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