I recently received a question from a journalist who was wondering whether a particular organization who received financial support from the Province of Ontario had an obligation to respond to FOI requests for general records. The journalist suspected that the organization fell under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA), however the organization did not appear to be listed in Regulation 460.
I responded to the journalist with the suggestions below. These suggestions were written to assist an individual hoping to obtain records, rather than for institutions responsible for responding to FOI requests. However, I thought my answer might still be of interest to many of the readers and followers of the FOI Assist website, even as just a look into what strategies a journalist or other member of the public might use to obtain records when there is uncertainty around a target organization’s status under FIPPA (or MFIPPA).
First, please read this article from the FOI Assist website, if you haven’t already:
If you don’t know whether an organization is obligated to respond to FOI requests, I’d suggest asking the organization directly what their position is on responding to FOI requests, perhaps over the phone. If you don’t feel satisfied with the answer you get, why not try submitting an FOI request to them and seeing how they respond?
It is possible that an organization may be legally obligated to respond to FOI requests and yet still not process your request, but this should be a rare occurrence, as organizations that receive government support generally know whether or not they are obligated to respond to FOI requests (and if they actually don’t know, your request should prompt them to find out).
If an organization fails to process your FOI request and you still aren’t satisfied, at that point, you are getting into a disagreement regarding their legal obligations and if you want to pursue that dispute further you should likely retain a lawyer. The lawyer may be able to look into the specific organization you are interested in and give you an opinion on whether the organization is legally obligated to respond to FOI requests.
Another strategy you might consider is sending your FOI request to a different institution that you know has an obligation to process FOI requests (such as a provincial ministry or a municipality listed on the Information and Privacy Commissioner of Ontario’s Directory Of Institutions) — as who knows, that other institution may have documents responsive to your request (especially if they deal closely with the organization you are interested in), or they may transfer your request to another institution that has relevant documents.
As described in the article cited above (Is my organization legally obligated to respond to FOI requests?) it is possible for an organization to be obligated to respond to FOI requests under FIPPA or MFIPPA and yet not appear by name under either Regulation 460 or in IPCO’s Directory of Institutions.
One way this can occur is if the institution is listed, but under an unfamiliar name. For example, the Ontario Science Centre does appear in Regulation 460, but only under its legal name, “The Centennial Centre of Science and Technology”. (In contrast, in IPCO’s Directory of Institutions, this institution is listed under its common name, “Ontario Science Centre”, but not under its legal name.)
Another way this can occur is if the organization is actually part of a larger institution and does not have a separate legal identity of its own, such as the Office of the Athletics Commissioner (which is legally a part of the Ministry of Tourism, Culture and Sport). The Office of the Athletics Commissioner does not appear under Regulation 460 or in the Directory of Institutions; however, if it received an FOI request under FIPPA, it would be obligated to respond.
I hope that the journalist found my response useful. And I hope that the readers of this website find it interesting in their practice as well.
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Is my organization legally obligated to respond to FOI requests? https://foiassist.ca/2018/10/03/is-my-organization-legally-obligated-to-respond-to-foi-requests/
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
Information and Privacy Commissioner of Ontario (IPCO) – Directory of Institutions https://www.ontario.ca/page/directory-institutions