Over 60,000 Freedom Of Information (FOI) requests were filed in Ontario in 2019 under the Freedom Of Information and Protection Of Privacy Act (FIPPA) and the Municipal Freedom Of Information and Protection Of Privacy Act (MFIPPA). Of these, only around 1,400 were the subject of an appeal to the Information and Privacy Commissioner of Ontario (IPCO). This is a little over 2% of all FOI requests, and suggests that institutions, on average, face one appeal for every 43 requests received.
The vast majority of institutions receive fewer than 20 requests a year, with many receiving fewer than 10. An FOI professional might serve at an institution for years, yet have little to no experience participating in FOI appeals. In fact, given the significant portion of FOI requests which originate from mass media, political parties, think tanks and other “professional” requestors, institutions may find that some requestors have more experience with FOI appeals than they do.
In today’s article, I want to provide an introduction to the FOI appeal process from the perspective of the institution. My main goal is to build the confidence of the many FOI professionals in Ontario who have seldom or never faced an appeal.
Yes, participating in an FOI appeal is extra work, but it’s not as bad as you might think!
Types of Appeals
Any decision that an institution makes with respect to a freedom of information request may be appealed to the IPCO.
Decisions that may be appealed include:
- Straightforward appeals: Deemed Refusal, Failure to Disclose Records, Time Extension, Transfer or Adequacy of Decision Appeal
- Reasonable Search (did the institution perform a reasonable search?)
- Fee Decisions (including final fee decisions, interim fee estimates and deposit requests)
- Access Decisions (both the decision to withhold or to disclose documents can be the subject of an appeal)
Who Can Appeal
Any individual or organization with a direct interest may initiate an appeal to the IPCO,
including the requestor, as well as any person whose interests may be affected by the decision (e.g., “affected persons” whose confidential or personal information may be subject to disclosure).
Because it is always the institution’s own decisions that are the subject of the appeal to IPCO, the institution receiving the FOI request is never in the position of initiating the appeal.
What Is Involved In An FOI Appeal?
Thinking of an “appeal”, what comes to mind for many people might be a traditional courtroom process, with lawyers from both sides attending in person to present legal arguments before a judge. One might even think of civil or criminal trials, where witnesses are called and cross-examined, and objections may be raised by either side in real-time.
Fortunately for both requestors and institutions, Ontario’s FOI appeal process is nothing like this. Most significantly, oral hearings are rare; in almost all cases, the entire appeal is conducted in writing from start to finish (with the exception of the “shuttle” mediation process as described below).
Stages Of The Appeal
This is where the IPCO will determine whether the appellant has submitted a valid appeal. When an appeal is dismissed at this early stage, it may indicate a misunderstanding of the FOI process by the appellant; for example, a requestor may have submitted an FOI request to an organization who has no obligation to respond to such requests, such as a business or a charity, or, the requestor may object to an institution issuing a time extension, without realizing that this is permitted under FIPPA/MFIPPA (at least in certain situations).
At this stage, the IPCO may send the institution a Notice Of Appeal to let them know that an appeal has been filed, and then a Confirmation of Appeal, which confirms that the appeal has been accepted by the IPCO (and therefore can be expected to proceed to mediation).
If the appeal is by an affected person, the IPCO may call the institution early on to warn them not to disclose any of the records that are subject to the appeal until the matter is resolved. (This is why institutions are advised to not disclose records that may be the subject of an affected person appeal until at least 30 days after the decision letter has been sent.)
If the basis of the appeal is a deemed refusal (the institution simply failed to issue a decision to the requestor within the deadline) or a failure to disclose records (the institution issued a decision to disclose records but then failed to disclose them), then the institution may also receive a Notice of Inquiry at this stage requesting it to submit written representations.
The institution may also be contacted by the IPCO for additional information at this stage, including a list of any persons who may be affected by the disclosure of records that are the subject of the appeal (“affected persons”).
Mediation most often takes the form of separate phone calls between an IPCO mediator and each party in the appeal. The IPCO mediator will “shuttle” back and forth between the requestor and the institution (and any affected persons if applicable) to attempt to achieve the consent of the parties to reduce the number of issues under appeal (or if possible, to settle the matter entirely). In the vast majority of cases, this is the only “live” portion of the appeal process, and even so, the IPCO mediator is generally speaking to only one party at at time in separate calls.
In my own experience, I can recall only one appeal where the IPCO mediator proposed a conference call with both sides participating in the mediation, and even then, the mediator appeared to consider it important to obtain the consent of both sides before proceeding on this basis.
If the subject of the appeal is a “straightforward appeal” (as defined above), there is an expedited mediation process, and if the parties are unable to settle the matter with a period of up to 14 days, then the mediator is empowered to issue an order disposing of the issues in the appeal (which brings the appeal to an end).
Otherwise, at the end of the mediation process, the mediator will prepare a Report of Mediator and send a copy to the parties for their review. This may describe the issues that the parties have now settled, and the issues that will proceed to adjudication. Each party may request that the mediator amend the report if they believe it contains an error or omission.
At this stage, IPCO assigns an adjudicator to the file. This is an individual authorized by the Privacy Commissioner of Ontario to conduct inquiries and issue orders in appeals. The adjudicator begins by sending a notice of inquiry to one of the parties describing the issues under appeal and requesting representations.
The recipient of the first notice of inquiry is usually the institution, who is expected to respond with representations explaining or justifying the decision being appealed. The adjudicator will then send a notice of inquiry to the requestor setting out the issues and asking why the requestor believes the decision is incorrect. If there are affected persons participating in the appeal, the adjudicator will generally send them a notice of inquiry as well.
Any representations submitted are generally shared between all parties, unless one of the parties persuades the adjudicator that there is a good reason not to do so.
This process continues until the adjudicator has enough information to prepare a decision on the issues under appeal, which is referred to as an “Order”.
It is at the Adjudication stage that an oral hearing could theoretically occur. As noted in the FOI Manual:
Any party to the appeal may request an opportunity to make oral submissions, and an oral hearing may be held if the IPC believes that it would aid in an exploration of the issues.
In an inquiry, the IPC has the power to summon and examine witnesses under oath. Anything said or any document or thing produced during an inquiry, whether oral or written is privileged to the same extent as it would be before a court.
An inquiry must be conducted in a manner that protects the confidentiality of the records pending the IPC’s decision. It is not a public hearing, witnesses are generally not cross-examined, and testimony may not be used in other proceedings.FOI Manual, Chapter 11: Appeals Process
However, as previously noted, such oral hearings are extremely rare, as the IPCO generally takes the position that an oral hearing will not aid in an exploration of the issues. I would expect the current pandemic to make the likelihood of an oral hearing even lower.
Similarly, although an IPCO adjudicator has the power to summon witnesses to testify, this rarely occurs in practice. When witness evidence is deemed necessary, it is far more common for the adjudicator to request that such evidence be submitted in writing, as affidavits.
An order is a decision by an adjudicator disposing of the issues in an appeal.
As described in the FOI Manual:
The IPC decides matters under appeal by issuing an order in the form of a report. An IPC order is binding on all parties to the appeal. An order is not subject to appeal; however it may be subject to a request for reconsideration or a judicial review. These processes will be discussed later in the chapter.
The IPC has broad order-making powers to:
Uphold or overturn an institution’s decisions related to the application of exclusions, exemptions, and fees;
Order an institution exercise or re-exercise its discretion;
Order an institution to conduct further searches for records;
Order an institution to produce a record where certain machine readable records are requested;
Issue an interim order on specific issues or records and defer a final decision; and
Order an institution to produce the records to the IPC.
The IPC notifies all parties to the appeal that an order has been issued and sends a copy of the order to the parties.FOI Manual, Chapter 11: Appeals Process
It is these orders which are published on the IPCO website as Decisions.
Does The Institution Need A Lawyer?
First, check whether your institution has any policy with respect to the use of in-house or outside counsel when an FOI matter is up for appeal. Some institutions may require consultation with a lawyer for every FOI appeal, or may make their legal team responsible for processing FOI appeals.
That aside, it is not uncommon for an FOI professional to see an appeal through, from start to finish, without the use of a lawyer. A lawyer can certainly help with preparing representations, especially with making arguments with respect to the application of exemptions and exclusions, or reviewing and applying earlier orders issued by the IPCO with respect to fee decisions, reasonable search, etc. A lawyer may also bring a valuable perspective to the mediation stage, helping the institution determine which issues can be quickly settled, and which should proceed to adjudication.
However, the capabilities of a skilled litigator to “think on their feet” during an oral hearing, to question and cross-examine witnesses, to raise objections, and to respond to legal arguments in real time simply aren’t relevant to the vast majority of FOI appeals. An institution that is confident it its ability to draft representations and apply the Acts, and interested in limiting its spend on legal resources in FOI appeals, but hesitant to “represent itself” in an oral hearing, might consider retaining counsel only in those rare cases where the IPCO determines that an oral hearing is warranted.
Another consideration is the institution’s assessment of the extent to which its interests are affected by the appeal. As context for the following two scenarios, consider a request for records that may fall under FIPPA s.17 / MFIPPA s.10 as confidential information of a third party. In one scenario, the institution may be ambivalent as to whether the information is disclosed. It may be best in this scenario not to expend significant energy on the appeal process, and instead, to let the requestor and the affected person litigate the question before IPCO, with minimal effort required from the institution itself. But in a different scenario, the institution may have a significant concern that its relationship with a valued vendor may be harmed if the vendor’s confidential information is “ordered out” by IPCO. In this case, the institution may wish to do all it can to ensure it brings its best case forward in the appeal, including retaining counsel at an early stage in the appeal.
If you are currently handling an appeal and are looking for more detailed guidance, or if you are simply interested in learning more about the appeals process, I highly recommend the resources linked to below.
For those of you who haven’t had much experience with FOI appeals, I hope this article has helped you to better understand the process and has reassured you that your institution can rise to the challenge of your next (or even your first!) appeal.
With the new FOI AssistTM 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. View 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.
Links to Resources:
IPCO: Appeal Process
IPCO: Code of Procedure for appeals under the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act
IPCO: Info Matters Podcast, Episode 3: Demystifying the FOI Process
Ministry Of Government Services: Freedom of Information and Protection of Privacy Manual, Chapter 11: Appeals Process