Abandonment Issues

Alphonse_Legros Abandoned_Village

What do you do when the requestor stops responding?

When an institution is processing an access request under either the Freedom of Information and Protection of Privacy Act (FIPPA) or the Municipal Freedom Of Information and Protection of Privacy Act (MFIPPA), at various stages in the process, the institution may reach a point where a response is required from the requestor in order to proceed any further.

One example of when this can occur is right at the beginning, at the intake stage of the process. A new request may not initially meet the mandatory requirements of a formal Freedom of Information (FOI) request under FIPPA or MFIPPA (the “Acts”). For example, the request may be unclear, or it may not include the $5.00 request fee. In such cases, institutions generally attempt to get in touch with the requestor to let them know that the request as received is not a valid request, and to offer the requestor assistance with creating a valid request. (For more information on clarifying requests, see my earlier article, Say what? Clarifying and narrowing requests.)

Another stage at which institutions frequently require a response from the requestor is after issuing an interim fee estimate. When an institution, based on a review of a representative sample of the records and/or the advice of knowledgeable institution staff familiar with the records requested, estimates that fees of $100 or more will be charged to the requestor to cover search costs, preparation time, reproduction costs, or other permissible costs, the institution may require the requester to pay a deposit equal to 50 per cent of the fee estimate before the institution will take any further steps to respond to the request. (To save time when generating interim fee estimates, check out the Interim Fee Estimate Tool.)

A response from the requestor can also be required right at the very end of a file, when the requestor is issued a decision letter and is required to pay any outstanding fees. Or a response might be required due to unusual circumstances–for example, an institution might process a request and have the responsive documents and decision letter ready, only to realize the requestor never provided the institution with a mailing address to which the disclosure package can be sent. Or the requestor might be in the process of moving, and instruct the institution not to send the documents to the address on file for the requestor, but never follow up with the institution to provide a new address.

In all of these cases, the institution is simply “stuck” until a response is received from the requestor. And as experienced FOI professionals know, that response often never arrives, no matter how many times the institution attempts to contact the requestor. What should an institution do when it can’t proceed any further with a request pending a response from the requestor, and the requestor fails to respond in a timely fashion?

Deeming A File “Abandoned”

If an institution is waiting on a reply from the requestor in order to proceed, and the requestor fails to respond in a timely fashion, then, assuming certain requirements have been met, the institution is permitted to deem the file “abandoned”, at which point it may close the file, even without express permission to do so from the requestor.

The concept of deeming a file “abandoned” does not appear in FIPPA, MFIPPA or their applicable regulations. Rather, the practice appears to have originated as a practical measure in response to the fact that requestors will frequently just “walk away” from requests they previously submitted.

(You might be wondering at this point: who exactly is “abandoning” the file — the institution, or the requestor? The answer is, by not responding to the institution in a timely fashion, it is the requestor who is abandoning the file. But it is the institution who “makes the call” that the file has been abandoned by the requestor. The institution then uses this as the justification for closing the file.)

Although file abandonment is not explicitly described in the Acts or their regulations, the process is described in the Ministry of Government Services’ Freedom of Information and Protection of Privacy Manual (the “FOI Manual”) and has also been the subject of some guidance from the Office of the Information and Privacy Commissioner of Ontario (IPCO) as well. It has become a well-established part of the FOI request process for Ontario’s provincial and municipal institutions.

FOI Manual Guidance

According to the FOI Manual,

When a Coordinator has attempted to contact a requester in order to proceed with processing the request and has not had a response from the requester, the request can be considered “abandoned.” The IPC advises institutions to allow 30 days to pass before marking a request as abandoned for general record requests. For personal information requests, the IPC advises allowing one year for response before closing the request.

Requesters should be notified in writing that their request may be abandoned. The letter should state the exact date at which the institution will close the file if no response is received. Institutions may choose to include this in a fee estimate letter or clarification letter; or write a separate abandonment letter.

IPCO Guidance

In its Year-End Statistical Report Workbook and Completion Guide, IPCO asks institutions to categorize the “disposition” of each request, i.e., how each request was completed. One of the categories is “Request Withdrawn – or Abandoned”, indicating that IPCO understands that institutions may in some situations need to deem a request abandoned.

IPCO appears to have provided very little guidance on file abandonment in its actual decisions and fact sheets, other than in the context of determining whether a series of requests may be considered frivolous or vexatious. In Order MO-3292, a requestor who abandoned multiple requests and then re-submitted similar requests was found to have demonstrated a pattern of conduct that amounts to an abuse of the right of access. As a practical matter, the issue of deemed abandonment may simply not come up on appeal often before IPCO, since in the vast majority of cases, when an institution has deemed a request abandoned, it is because the requestor has truly abandoned the file and is no longer interested in pursuing the matter. That said, in Order MO-3858, the IPCO found that the Town of Sauble Beach incorrectly assumed that a requestor had abandoned the request because he failed to submit the $5.00 application fee with the request. When the requestor later attempted to rectify the error by submitting the $5.00 fee, the Town sent the payment back to the requestor, taking the position that the file had already been abandoned. The IPCO adjudicator found that “the town’s mistaken position that the appellant had abandoned its requests resulted in unnecessary confusion and delay in the process.”

Given the limited guidance on the topic in IPCO’s decisions, the best information on when and how an institution can correctly deem a file abandoned comes from the FOI Manual, the minimal guidance offered by IPCO, and a consideration of the main purposes of the Acts, which are to provide a right of access to information under the control of institutions in accordance with the principles that information should be available to the public, and that necessary exemptions from the right of access should be limited and specific.

Requirements For Deeming a File “Abandoned”

Below I have attempted to summarize the requirements that should be met before an institution deems an FOI request to have been “abandoned”.

1. The institution must be waiting for a response from the requestor, and must have a good reason for doing so

A file cannot be abandoned simply because the institution “hasn’t heard from the requestor in a while”. The institution must be in the position of waiting for a reply from the requestor, and it must have a good justification for waiting. For example, the Acts state that a valid request must be accompanied by a $5.00 application fee and must “provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record” (i.e., the request must be clear). A request that does not satisfy these requirements is not a valid FOI request, and therefore an institution has no obligation under the Acts to process a request that does not meet these requirements. Similarly, if an institution sends the requestor an interim fee estimate of $100 or more and requests a 50% deposit, the institution has a clear legal right under the Acts not to take any further steps to process the request until the deposit is paid, and therefore, the institution has a good justification for waiting for the requestor’s reply before proceeding.

On the other hand, in other cases, it may not be clear that the institution has a sufficient justification for waiting for the requestor’s reply before processing the request. An institution may send a letter to the requestor suggesting that they narrow their request. Even in the absence of a response from the requestor, the institution is already in the possession of a valid request from the requestor, and generally could continue to process the request without any further input from the requestor. If the request as received would encompass a large number of documents, the safest approach may be to simply issue an interim fee estimate instead, rather than attempting to deem that the request has been abandoned by the requestor. If the requestor fails to respond to the interim fee estimate in a timely fashion, the institution will be on much stronger ground at that point to deem the request abandoned.

2. The requestor must fail to respond to the institution in a timely fashion

The requestor must be granted a reasonable amount of time to respond to the institution. The Acts and their regulations do not provide any definitive guidance on how long an institution should wait before it is reasonable to deem a request abandoned. However, as noted above, for general record requests, the FOI manual suggests that institutions allow 30 days to pass before marking a request as abandoned. For personal record requests, the FOI manual simply notes that “the IPC advises allowing one year for response before closing the request.” That said, I have encountered the “one year” advice in only one document published by the IPC, specifically, its Year-End Statistical Report: Workbook and Completion Guide (links below) where this advice appears to be a little out-of-place. According to this IPC guide, “For personal information requests, the policy is to allow up to 365 days (one year) before considering the request abandoned.” It’s not clear where this policy originated as I have been unable to locate any IPCO Order or any other IPCO publication offering this guidance. Interestingly, the FOI Manual itself does not appear to incorporate this “365 day wait” for personal information requests in the sample letters it provides — many of the templates simply state “If we do not hear from you within 30 days of this letter’s date, we will close your file”, even if they are intended to be used for both general records and personal records requests.

It’s not clear why there should be such a disparity between how general records requests and personal records requests are treated. Perhaps there is a perception that requestors of personal information are on the whole less sophisticated, less likely to have professional representation, or are less likely to seek a large volume of records requiring a significant search effort. That said, many personal information requests are in fact requested by legal counsel, and the right to seek general records is open to everyone, including unrepresented individuals. A 365-day rule may wind up putting a significant administrative burden on institutions that handle many personal information requests. Hopefully, this rule will be clarified by an IPCO Order or other IPCO guidance in the near future. In the meantime, whether or not your institution decides to abide by the “365 day” rule for deeming personal information requests abandoned, or a shorter period of time as seems to be favoured in the letter templates set out in the FOI Manual, I would keep in mind that IPCO may be less keen to accept an institution’s decision to deem a personal information request abandoned, especially if the requestor was granted merely 30 days to reply.

3. The requestor must be informed that the file will be closed if they fail to respond by a specific date.

Although this requirement is not expressly set out in the Acts or their regulations, the FOI Manual advises that the institution should inform the requestor that their request may be deemed abandoned by the institution should the requestor fail to respond by a certain date:

Requesters should be notified in writing that their request may be abandoned. The letter should state the exact date at which the institution will close the file if no response is received. Institutions may choose to include this in a fee estimate letter or clarification letter; or write a separate abandonment letter.

This is reasonable and practical guidance and seems quite likely to be adopted by IPCO should the matter ever come up in adjudication. Requestors are not expected to be familiar with the FOI request process — if the requestor is effectively being given deadline to respond to the institution, the requestor should be clearly informed of the deadline.

Where a response is required from the requestor, the letter templates in the FOI Manual generally use the following language:

If we do not hear from you within 30 days of this letter’s date, we will close your file.

or

Please note, if we do not receive your fee payment within 30 days of the date on this letter, we will consider your request abandoned and close the file.

Based on the letter templates in the FOI Manual, it appears that the requirement to “state the exact date at which the institution will close the file” is satisfied by language such as “within 30 days of this letter’s date” rather than actually calculating such new date and spelling it out in full in the letter.

As noted in the FOI Manual, it is acceptable to notify the requestor that their request may be deemed abandoned either in the original letter seeking a reply from the requestor, or in a separate “abandonment” letter. The FOI Manual provides a special abandonment letter template for just this purpose.

One practice that institutions may choose to adopt when sending correspondence to which the requestor is expected to reply is to include a statement in the original letter that the request “may be deemed abandoned within 30 days”, and then follow up with a proper full abandonment letter if no reply is received. This should have the effect of encouraging requestors who are still engaged in the process to respond, while reducing the number of requestors who are taken by surprise when their request is deemed abandoned. It should also help to strengthen the institution’s case if there is any appeal on the issue of abandonment. Finally, even if no abandonment letter is ever sent (perhaps because the institution neglects to do so), the original letter should be sufficient for the purpose of providing the requestor notice of potential abandonment in accordance with the guidance in the FOI Manual.

Effect of Abandoning a File

The effect of deeming a file abandoned is the same as if the requestor expressly withdrew their request. The file can be closed, lowing the administrative burden on the institution. The work involved in tracking and reporting internally on the status of a large number of open files should not be discounted! Closing files as early as possible can help reduce this burden. (See Year-End Statistical Reporting doesn’t have to be scary for help with closing files.)

If you have any questions or comments about this article, I encourage you to leave a reply below.

If you’d like to stay engaged with further updates and see pre-release previews and demos of the FOI Assist software, please follow the FOI Assist blog. To subscribe, simply enter your email address at the bottom of the page then click the follow button.

Related Articles:

What are the requirements of a valid Freedom Of Information (FOI) request?

Say what? Clarifying and narrowing requests

Interim Fee Estimate Tool

Year-End Statistical Reporting doesn’t have to be scary

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

Freedom of Information and Protection of Privacy Manual https://www.ontario.ca/document/freedom-information-and-protection-privacy-manual

Information and Privacy Commissioner of Ontario (IPCO) Annual Statistical Reporting and Supporting PDF Materials https://www.ipc.on.ca/access-organizations/annual-statistical-reporting/annual-statistical-reporting-and-supporting-pdf-materials/

IPCO Order MO-3292 (City of Brampton), decided March 1, 2016
https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/143854/index.do

IPCO Order MO-3858 (Town of South Bruce Peninsula), decided November 4, 2019
https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/424632/index.do

Published by Justin Petrillo

I am creating 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.

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