In the Province of Ontario alone, there are over 1,000 institutions who are obligated to respond to Freedom of Information (FOI) requests under the Freedom of Information and Protection of Privacy Act (FIPPA) or the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). This impressive number leaves a lot of room for variation across institutions with regard to how searches for responsive documents are conducted.
Some institutions tend to rely on their dedicated FOI Coordinators to search for responsive documents. Others rely more heavily on the “owners” of the documents within the institution to perform the search.
For example, if a request comes in for “all documents related to Request For Proposal (RFP) 2018-12345”, at some institutions, an FOI Coordinator may be the one to pull the requested documents, while at other institutions, the request may be referred to the institution’s Procurement team to find the requested documents and forward them to the institution’s FOI team.
Each approach has its advantages and disadvantages.
The main advantage of having the FOI Coordinator perform the search is that they tend to be more familiar with the FOI process, and may have more experience in determining which documents are responsive to the request when conducting the search. But the obvious downsides of having the FOI Coordinator conduct the search for records include that they may not know where to look for the responsive documents, they may not know how the documents are organized, they may not have sufficient experience or context to understand the documents that they wind up searching through, and they might not even have ready access to the requested documents (which, for example, might be kept in a locked file cabinet or on a restricted file server). Further, relying on the FOI team to perform the search themselves may present a bottleneck in the FOI request process — the FOI team may become “swamped” when a few requests arrive together within a short span of time.
In contrast, the main advantage of asking the “document owner” to search for responsible documents is the potential for a faster and more accurate search, as the “document owner” is generally more familiar with the documents, where they are stored, and how they are organized. A side benefit of asking document owners to perform searches (rather than having searches conducted solely by the FOI team itself) is that the FOI workload is better dispersed across the institution when document owners are brought in to assist the process. For example, if a procurement-related request comes in, a finance-related request, and a marketing-related request, the FOI team can rely on different staff across the organization to work in parallel to complete multiple requests more quickly and efficiently. Or similarly, if a large request comes in which requires an institution-wide search, the FOI team can coordinate an effective search conducted by various staff of the institution and complete the request much more quickly than if the FOI team had to search through all of the institution’s records itself.
However, the significant downside to relying on document owners to conduct FOI searches is that document owners tend to be less familiar with the FOI process and the institution’s responsibilities thereunder. FOI professionals are fully immersed in the FOI process and understand its requirements and the tight deadlines involved, and may have better awareness of the potential for negative publicity and other consequences if a request is not processed in accordance with the institution’s standards and its legal obligations. Document owners, on the other hand, may get involved in the FOI process only infrequently. They are therefore naturally less inclined to see the FOI process as a priority for the institution, or to understand all of the formal requirements of responding to an FOI request, such as the need to keep notes of their search process and ensuring that every responsive document is identified and sent to the FOI team for review. (This of course is a generalization that will apply more to some document owners than others. For example, if an institution receives frequent FOI requests relating to RFP’s, the institution’s Procurement team will likely become quite familiar with the FOI process and understand its importance to the institution.)
I have found one of the best ways to address some of the potential problems involved in relying on document owners to perform records searches is to formalize the process by preparing a memo addressed to the internal staff member (or department) to whom the search is being assigned. This memo can be quickly prepared using a template, and can contain all of the information that the document owner needs to know in order to conduct an FOI search. The memo is then sent (generally by email) to the relevant staff member (or department) who will be conducting the search.
Assigning a search to a document owner via a somewhat formal memorandum brings the following advantages:
- It sets out exactly what the document owner is being asked to do, and provides all of the relevant information they need to begin the search;
- It creates a record of exactly when the request to the document owner was made, and generally sets out an internal deadline for when the results of the search are required to be sent back to the FOI team; and
- It provides a standard format for seeking internal staff assistance for FOI requests, making it easier for staff to recognize that they are being formally requested to assist in the processing of an FOI file.
The Ontario Ministry of Government Services’ Freedom of Information and Protection of Privacy Manual provides a good selection of sample letters and templates, however, there is no template provided to be used for requesting the assistance of internal staff in searching for documents responsive to an FOI request.
I have therefore prepared a template memo for this purpose, which I welcome you to use within your own institution:
Template Memorandum: Assigning search to internal staff
To: [Institution staff member assigned to search for responsive records]
Subject: FOI File [File Number] – [File Name]
A new Freedom of Information (FOI) request has been received by the organization.
[The FOI request received by our institution is for:
Text of FOI request
You are requested to conduct a search for all records responsive to this FOI request.]
[You are requested to conduct the following part of the search:
Description of portion of search assigned]
Please let me know immediately if you believe that any of the following may apply:
– If you need help understanding the FOI request or the search process
– If you think we need to ask the requestor for more information in order to better understand what they are looking for
– If another staff member may be in a better position to perform this search
– If additional staff support is needed to conduct the search
– If you believe the search will take more than 3 hours to perform
– If you believe that some or all of the records you locate may contain the personal information of an individual
– If you believe that some or all of the records you locate may contain any trade secret or scientific, technical, commercial, financial or labour relations information, either belonging to our institution, or supplied to our institution in confidence implicitly or explicitly.
– If you believe there may be another reason for us to not disclose the records you locate.
[- If you will not be able to complete the search by the internal deadline set out below.]
As always, time is of the essence as we have a relatively short deadline to respond to the requestor with an access decision. [As such, please send copies of all responsive records to me by no later than DATE.]
Please keep notes of your search process and be prepared to answer, if asked:
– Who was consulted during the search? What guidance was provided?
– What was searched? (You may be asked to provide a description of paper and electronic file plans or lay-outs, as well as a list of all devices, accounts or other storage sites searched.)
– How was the search conducted? (You may be asked to provide details such as search terms used, dates when the search was conducted and amount of time spent.)
– What types of files were considered?
– Were any areas or file types intentionally left out of your search? If so, why?
– What records were found during the search?
– What issues or concerns were raised during the search?
Note that records received by the FOI Coordinator will not necessarily be disclosed to the requestor. After the responsive records are identified, the next step is determining the applicability of any disclosure exemptions. In some cases, this will involve consultation with any affected third parties prior to our making a disclosure decision.
I look forward to receiving copies of the requested records from you. If you wish to discuss further in the meantime, please let me know.
[Name and contact information for FOI Coordinator]
You may wish to make changes to the template above to customize it for your own institution and process. I have formatted it with the expectation that it will be sent by email from an institution’s FOI Coordinator to an internal staff member at the same institution.
I hope you find this template useful and that it helps you to improve your institution’s FOI process. As always, if you have any comments or questions regarding this template or this article, I look forward to hearing from you, either directly, or using the comments section below.
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