Are Your Written Notices Defective?

Most Freedom Of Information (FOI) professionals understand that an incoming FOI request must meet certain requirements to be valid. (For more details on what constitutes a valid FOI request, see What are the requirements of a valid Freedom Of Information (FOI) request?)

However, FOI professionals may be less familiar with the guidance and directives that have been issued with respect to the various kinds of correspondence that provincial and municipal institutions themselves send to the requestor and to the other parties involved in the FOI request process (including affected persons, requestor’s agents, etc.)

Together, the Government of Ontario and the Information and Privacy Commissioner of Ontario (IPCO) have released hundreds of pages of advice and requirements relating to the letters that institutions send out as part of the FOI request process.

Today’s article is intended to help institutions understand the various sources of such guidance and directives, and to give you a few examples of specific requirements that you might be overlooking.

The Acts And Regulations

Ontario’s Freedom Of Information and Protection Of Privacy Act (FIPPA) and Municipal Freedom Of Information and Protection Of Privacy Act (MFIPPA) provide numerous rules regarding correspondence sent by the institution to the requestor and other affected parties. Both of these Acts use the term “written notice” to describe the various letters that must be sent by the institution as part of the FOI request process.

For example, s. 25 of FIPPA sets out the requirement to “give written notice” to the requestor when a request has been forwarded:

Request to be forwarded

25 (1) Where an institution receives a request for access to a record that the institution does not have in its custody or under its control, the head shall make all necessary inquiries to determine whether another institution has custody or control of the record, and where the head determines that another institution has custody or control of the record, the head shall within fifteen days after the request is received,

(a)  forward the request to the other institution; and

(b)  give written notice to the person who made the request that it has been forwarded to the other institution.

However, the Acts generally provide little guidance regarding what information is required to be included in the written notice sent by the institution, or how such information should be set out in the notice.

This is evident in FIPPA’s description of a decision letter:

Notice by head

26 Where a person requests access to a record, the head of the institution to which the request is made or if a request is forwarded or transferred under section 25, the head of the institution to which it is forwarded or transferred, shall, subject to sections 27, 28 and 57, within thirty days after the request is received,

(a)  give written notice to the person who made the request as to whether or not access to the record or a part thereof will be given; and

(b)  if access is to be given, give the person who made the request access to the record or part thereof, and where necessary for the purpose cause the record to be produced.

Relying solely on the language above, an institution would have no indication that decision letters frequently include an index of records which provides an inventory of responsive records (or record groups), and references to the Act of any cited exemptions and reasons.

Where did the practice of sending lengthy, detailed decision letters come from, if not directly from the Acts themselves? The answer is that such requirements came from numerous other sources, including the Government of Ontario, official IPCO guidance documents, and IPCO access decisions as well.

Freedom of Information and Protection of Privacy Manual

The Ministry of Government Services’ Freedom of Information and Protection of Privacy Manual, often referred to as the “FOI Manual”, is a general guide to FIPPA and MFIPPA and to the administration of these Acts. The FOI Manual should be every institution’s first resource for creating letters that are in compliance with the Acts and IPCO guidance.

According to the FOI Manual, all correspondence issued from the institution to the requestor should include:

• An access request number, to allow requestors and institutions to easily identify a particular request
• The name, title and phone number of a person that the requestor can contact to discuss their request
• A statement that the file will be abandoned if the requestor’s response is not received in 30 or 365 days, where appropriate

And all written communications with a requester and third parties should:

• Use plain language;
• Be responsive to all issues in the request;
• Explain decisions and reasons fully; and
• Specify timelines for response and relevant dates

With respect to a decision letter regarding the disclosure of records, the FOI Manual advises including:

• The volume of responsive records located;
• What records are being released in full;
• The exemptions and exclusions applied (if any);
• The number of pages severed or withheld for each exemption or exclusion;
• Copies of the relevant sections of the legislation;
• If any fees apply, the final calculation of fees and required payment;
• If any fees apply, information on requests for fee waivers;
• The name and position of the decision-maker for the request;
• For high volume requests, consider including a copy of the index of records;
• Notice that the requester can appeal the decision to the IPC within 30 days and appeal requirements; and
• Contact information for an individual who can answer questions regarding the processing of the request.

The FOI Manual includes well-written template letters which are a useful starting point. Institutions should be sure to check their own letters against the templates found in the current FOI manual to ensure they are up-to-date and consistent. (For example, one common error is failing to include relevant excerpts from the legislation in decision letters and fee estimate letters as directed by the FOI Manual.)

However, when it comes to an institution’s written notices, the FOI Manual is not the final word; it merely represents the Ministry of Government Services’ best practices and interpretation of IPCO’s guidance and the Acts at the time the manual was written (March 2018). The official authority for interpreting any requirements under FIPPA and MFIPPA is IPCO, which has issued guidance documents of its own, as well as various orders and decisions.

IPCO Guidance Documents

IPCO has issued numerous guidance documents which relate to the form and content of written notices issued by the institution.

IPCO maintains a list of its guidance documents here: https://www.ipc.on.ca/guidance-documents/

Recent IPCO releases relevant to the content of written notices sent by the institution include:

• Fees, Fee Estimates and Fee Waivers (June 2018)
• Third Party Information Exemption (September 2018)
• Frivolous and Vexatious Requests (August 2017)

The guidance in the Government of Ontario’s FOI Manual is intended to capture and summarize the directives issued by IPCO. However, information provided by IPCO may be more detailed or more up-to-date than what is found in the FOI Manual.

For example, the Fees, Fee Estimates and Fee Waivers guidance document cited above provides the following requirements for a decision letter in which access to some or all responsive documents is refused:

If access is refused, the decision must contain the following elements:

• the specific exemptions or other provisions the institution is basing its decision on
• a description of the records
• the reasons the exemptions or other provisions apply
• details of the institution’s exercise of discretion
• the name and position of the institution’s decision maker
• a statement indicating the decision may be appealed
• a statement, accompanied by a fee estimate, that indicates the requester may ask the institution to waive all or part of the fee

Notably, the items set out in bold text directly above are not captured in the decision letter guidance in the FOI Manual (most likely because the IPCO guidance was issued more recently).

IPCO Decisions

Numerous IPCO decisions set out the requirements for various written notices issued by institutions.

For example, in Order MO-3570 (Township of Carling), the institution issued decision letters stating that a request was frivolous or vexatious, and in the alternative, that certain records were exempt from disclosure. IPCO Adjudicator Justine Wai did not uphold the institution’s decisions, noting that its decision letters did not include the information mandated by IPCO:

 The township attached an “Index of Records” to each decision letter that appears to add to the township’s exemption claims. Each Index of Records contains: (1) the item number in the appellant’s request; (2) a “General Description”; (3) the township’s decision regarding disclosure; (4) the exemption(s) claimed; and (5) “Comments/Explanations”. In the Index of Records, the township refers to sections 7(1) (advice or recommendations), 8(1)(a)(b) and (f) (law enforcement), 12 (solicitor client privilege) and 14(1) (personal privacy) to withhold the records, in addition to its frivolous and vexatious claim. While the township refers to the specific items or types of records identified in the appellant’s request, it does not offer any description of the responsive records it located. In addition, the “Comments/Explanations” column of the Index of Records only contains a copy of the section of the Act claimed.

IPCO Order MO-3570 (Township of Carling), para 37

Adjudicator Wai then considered the decision letter requirements as set out in the IPCO Fees, Fee Estimates and Fee Waivers (June 2018) guidance document above and found:

The township’s decisions in response to the appellant’s requests did not contain a number of the elements set out above. For example, the Index of Records does not describe the records responsive to the requests in the “General Description” column but reproduces the item of the request subject to the particular exemptions claimed. Therefore, the township did not provide a general description of the records at issue. In addition, the township did not provide the appellant with an explanation as to why the exemptions claimed applied to each record or part of a record. Moreover, there are inconsistencies between the exemptions referred to in the actual decision letters and those identified in the Index of Records.

In my view, the township’s decision letters and Index of Records are such that the appellant is not able to determine what records it located, what records were denied under which exemptions, whether the township responded to the appellant’s request in its entirety and whether certain records that might be responsive to the appellant’s request exist.

Given the lack of detail in the township’s original access decisions, I will order the township to issue proper access decisions to the appellant respecting access to records responsive to his two requests in accordance with the requirements of the Act , with reference to the IPC’s document Drafting a Letter Refusing Access to a Record (February 2013).

IPCO Order MO-3570 (Township of Carling), para 41-43

For issuing decision letters which did not comply with IPCO’s requirements, the institution lost the appeal. The Adjudicator ordered the institution to issue new decision letters which complied with the relevant IPCO directives.

Conclusion

Issuing compliant written notices can be deceptively complicated, given the multiple sources of rules and guidance that come into play. Unfortunately, as seen above, issuing a notice which fails to meet these requirements can lead to an adverse decision against the institution in an appeal before IPCO.

Consider whether your intuition’s practices and templates are up-to-date with respect to the current FOI Manual and IPCO Guidance documents.

The FOI Assist Software

Alternatively, you can use the FOI Assist software to automatically generate the various written notices required for the FOI request process, allowing you to prepare fully-compliant letters in minutes. Each letter is generated based on the information already stored in the system for a specific FOI request, so in most cases, the generated letter is ready-to-go with no additions or modifications required.

Letters that can be generated by the FOI Assist software include: acknowledgement letters, clarification letters, defective request letters, transfer or forwarding letters, declarations that a request is frivolous/vexatious, revised wording letters, abandonment letters, time extension letters, fee estimates, affected person notices, affected person decisions, and access decision letters.

I have been giving demonstrations of the FOI Assist software via Zoom and Google Meet. If you would be interested in seeing how the FOI Assist software can save you time and help you respond to FOI files in compliance with applicable legislation, please send me a note via the contact page. I would be happy to show you the FOI Assist software in action and answer any questions you might have.

With the new FOI Assist^TM software, Ontario’s provincial and municipal institutions can process and respond to Freedom Of Information requests quickly, easily, and in full compliance with applicable legislation and guidance. Read the release announcement.

To receive guidance and tips on processing FOI requests, as well as up-to-date information about the FOI Assist software, please follow the FOI Assist website. Simply enter your email address at the bottom of the page then click the follow button.