Splitting up an FOI Request

The basic right of access in the Freedom of Information and Protection of Privacy Act (FIPPA) is set out in section 10(1): every person has “a right of access to a record or a part of a record in the custody or under the control of an institution” (unless certain exemptions apply).

Reading this “right of access” language, one might get the impression that freedom of information (FOI) requests generally identify a specific record being sought.

Of course, in practice, FOI requests are frequently extremely broad in scope, often including terms such as “all records”, “all emails”, “all discussions”, and sometimes including date ranges that can span months or years. In fact, institutions regularly receive requests with numbered lists of items, with each item containing descriptions of the records being requested under that part.

Fortunately, provincial and municipal institutions in Ontario have the option of “splitting up” an FOI request, that is, deeming that a request with multiple parts is actually a number of separate, smaller requests, all received on the same day. (And similarly, although less common in practice, an institution may deem multiple related requests received around the same time from the same requestor to actually be one single request — I refer to this as “lumping together” multiple requests.)

When can an institution split up a request into multiple parts?

There is little guidance on this topic outside of the actual appeal decisions of the Information and Privacy Commissioner of Ontario (IPCO). However, the IPCO decisions make it clear that the institution’s decision to “lump” requests together or “split” requests apart can be appealed to the IPCO, who may in turn affirm, reverse or adjust the institution’s decision.

The relevant appeals on record frequently appear to arise in the context of a fee dispute. In some cases, the requestor is trying to avoid paying a $5 application fee with respect to a large number of access requests by lumping different requests together, and the institution takes the position that each part of the request should be accompanied by its own $5 fee and treated as a separate request. In other cases, an institution may have a policy of not charging additional fees below some threshold. The requestor therefore splits a large request into smaller requests, hoping to pay just the $5 fee for each “mini” request but avoid being charged any additional fees by keeping each request under the fee threshold.

Order MO-2367 (City of Toronto) decided November 25, 2008

Order MO-2367 appears to fall into the second category. The requester sought access to the entire contents of all folders maintained by the City of Toronto’s Municipal Licensing and Standards Division (MLS) at any time pertaining to signs, for approximately 161 specified properties. Initially, the requestor submitted a single $5 application fee for all of the information requested. Subsequently, the requestor agreed to have each property treated as the subject of a separate FOI request, and submitted a $5 application fee for 157 of the properties, for a total of $780 in additional application fees.

In the appeal, the requestor expressed regret for agreeing to pay a $5 fee with respect to each property. He took the position that “there is no provision in the Act for these charges and the IPC should strike down the City claim that it is entitled to charge $5 for each municipal address.” The requestor’s position was that he should be able to decide whether the request was treated as one single request, or if they were going to be split, how they should be split. He suggested he might prefer to split the requests such that each request included two municipal properties. (Presumably this was to minimize the total fees he would pay, as the City had a policy of waiving additional fee amounts under $10.)

The adjudicator’s decision contains useful guidance which supports giving institutions discretion to split up requests in a way that makes sense for how the searches will be conducted and how their records are organized.

The Act [MFIPPA] does not provide any guidance on how requesters should phrase their requests for information. It does not provide for circumstances in which multi-faceted requests might be treated as one request or several. The Act simply provides that the fee prescribed by the regulations ($5.00) should be charged for each request. Nevertheless, it is neither appropriate for a requester to attempt to avoid incurring search fees by parsing the request in a manner that would ensure the fee for each part is too small to justify requiring payment; nor is it appropriate for an institution to penalize a requester who lists multiple requests in one letter by treating it as one request in order to inflate search fees.

In my view, the appropriate determination in this case of whether a request for information should be treated as a single request or several should be based on how an institution’s records are maintained and what the most straightforward, logical way to search for and to retrieve the responsive records might be. From the City’s representations, I understand that MLS records are organized by property addresses both electronically, in that department’s database and in the City-wide records management system, as well as physically, in the filing cabinets and archival boxes. The City submits that this method of managing the records makes it easy to locate all information relating to a specific property across a number of program areas in response to an FOI request.

Based on the City’s explanation of how the types of records at issue in this appeal are kept and why, I accept that requests that seek information about specific property addresses such as those that encompass Request Number 06-4690 et al result in searches that are essentially “self-contained” within those specific property addresses, whether an individual wants all the information relating to that property or just a specific type. In my view, it seems reasonable that requests relating to each property address would require a new search either by creating a query to locate electronic records in a database or by physically pulling a separate file related to that address from a filing cabinet or box. Not only does the characterization of each property address as a separate request best reflect the way in which the City would locate the responsive records but it also, taking into account the City’s policy not to charge for fees under $10.00, minimizes the amount of fees that the requester will be required to pay. Therefore, in the circumstances of this appeal, I find it reasonable to conclude that each municipal property address is properly characterized as a separate request and requires its own $5.00 request fee.

Accordingly, I uphold the City’s decision to treat each property address as a separate request.

Order MO-2367 (City of Toronto) decided November 25, 2008

Order P-1267 (Ministry of the Solicitor General and Correctional Services) decided September 26, 1996

That said, the IPCO does not always support an institution’s decision to split a request into multiple parts. In Order P-1267, the Ministry of Correctional Services concluded that the requestor’s 51-part request was actually 39 different requests. The IPCO adjudicator disagreed, noting that splitting the request in this manner would result in inefficient, repeated searches. The adjudicator found that the requestor’s submission of a detailed, multi-part request actually constituted helpful narrowing which reduced the amount of work that would otherwise be required to respond.

In reviewing the Ministry’s division of the request, it appears to me that if the Ministry processed each part of the request it has identified as being a separate request individually, the Ministry would be repeating search activities where, in my view, it would seem more efficient to conduct one comprehensive search. As well, based on my review of the request, it appears that some areas of the Ministry may have already collected some responsive records together in one location in order to conduct internal investigations of the appellant’s complaints and to prepare its own case before the Ontario Human Rights Commission.

Finally, in the circumstances of this appeal, I am satisfied that the requester could have submitted a broadly worded request which would have encompassed everything responsive to his request, with the exception of the last four items. Such a broadly worded request would have been, in my opinion, much more onerous for the Ministry to process, and would have resulted in the appellant being provided access to more records than he was interested in. In my view, the appellant has actually aided the Ministry’s processing of his request by being specific about particular records he is interested in and the location of the information he is seeking. While the Ministry has indicated that the information will have to be collected from a number of different locations, these locations are, with one exception, all offices within the appellant’s former work location (the only exception is noted as an alternate location to one within the appellant’s former work location) or its storage facility.

Having carefully considered the appellant’s request and the representations I have received, I find that Items 1-16 and 20-50 of the appellant’s request all relate to incidents which occurred during the course of his employment and are connected to his discrimination complaint. These parts of his request are reasonably related and it is appropriate, in my view, to consider these items as comprising one request. Accordingly, the $5 application fee paid by the appellant is sufficient to satisfy his obligations under the Act .

Order P-1267 (Ministry of the Solicitor General and Correctional Services) decided September 26, 1996

However, the adjudicator did find it reasonable for the Ministry to characterize the last four items of the appellant’s request as three separate requests, and to charge a $5 fee with respect to each of them.

The adjudicator also noted that neither the amount of time a search was expected to take, nor how overburdened the institution was, were relevant to the question of whether the institution should be allowed to split the request into smaller requests:

The Ministry devotes a significant portion of its representations to explaining how much time it will take Ministry employees to locate and retrieve the information requested by the appellant. In my view, the amount of search time required is not a relevant consideration when assessing application fees under the Act .

The Ministry also indicates that the administrative staff at the appellant’s former work location is overburdened and will not be able to process the appellant’s requests. This factor is not, in my view, relevant to the assessment of application fees.

Order P-1267, ibid

Advantages to Splitting Up a Request

If a request has many separable parts, there can be real advantages to the institution to splitting the request up. These advantages include:

  • The institution can charge a $5 fee for each new request created
  • The institution can hold off on processing newly created requests for which the $5 fee has not yet been paid
  • The requestor may decide not to proceed with certain parts of the request, helping to narrow the request and lowering the institution’s workload
  • Splitting up the request may make the requests and associated searches easier to assign to multiple staff or teams within the institution
  • Can simplify the affected person process (smaller requests can be easier to process and may involve fewer affected persons)
  • Can issue time extensions and fee estimates with respect to each part of the request, often simplifying the process and the drafting of appropriate correspondence
  • If a request is a mix of both simple and complicated parts, it can make it easier to quickly deal with the simple parts of the request, including issuing a decision letter with respect to only those parts
  • It can be a fairer way to account for request statistics: if one request is actually 10 requests, it’s more accurate for the statistics to portray your institution as handling 10 requests
  • If a request is for both general records and personal information, splitting up the request can make it easier to process each portion under its own rules (e.g., different fees apply, different requirements for consents and proof of identification, etc.)
  • It may reduce the scope of appeals — if the institution is able to quickly “close off” or decide portions of the original request while others are still being processed, then the requestor may be less likely to appeal issues relating to the completed parts
  • If your institution has a “routine request” process, splitting up the request may allow you to more effectively employ that process

Notably, many of the advantages listed above are to the benefit of both the institution and the requestor; in many cases, the requestor will receive parts of the information they requested more quickly and with potentially lower fees than if the request were handled as a single monolithic request.

Disadvantages to Splitting Up a Request

Of course, in many cases it may not make sense for the institution to split up a request, even if the institution thinks it would be reasonable to do so. Disadvantages include:

  • In some cases, the institution may find it easier to process a single large request, rather than to process a number of smaller requests
  • Processing requests separately may lead to inconsistent decisions or search results
  • Increased correspondence: for example, the institution may wind up having to create a separate fee estimates for multiple requests, separate time extensions, separate decision letters, etc.
  • It may be harder to justify time extensions relating to the separated parts of the request, each of which taken separately may not appear to justify a time extension
  • Related, the institution may be forced to handle some parts of the request ahead of others, to its detriment (i.e., there may be additional pressure to respond to the “simple” parts of the request within the basic 30 day deadline, while the more complicated parts of the request are still being processed)
  • The requestor may appeal the institution’s decision to split up (or to lump together) different parts of the request

Because of these disadvantages, it is important to split up a request only when there is a clear division between the different parts of the request. It is not a good idea to split one request into multiple parts when the searches or decisions relating to one part of the request may inform the searches or decisions for other parts of the request. On the other hand, some requests may be comprised of parts that leave you wondering why they were submitted in the same letter at all, because they seem completely unrelated to one other. In such cases, you may find it useful to know that splitting up a request into multiple parts is an option for your institution.

How to Split Up a Request

Splitting up a request involves sending the requestor a letter to let them know that the institution has split the request into multiple parts. The letter should assign each new request a file number, describe each new request (i.e., what portion of the original request does it cover), and demand a $5 application fee with respect to each new request. If the requestor has already submitted $5 with their original request, it should be applied to one of the newly created requests (presumably the first one). The other requests are put on hold until their $5 application fee is paid.

To avoid the risk of an appeal, the institution may consider seeking the approval of the requestor prior to splitting up a request (or lumping them together). It is the institution’s decision whether to split or lump requests, regardless of the preference of the requestor; that said, as with any decision of the institution, if the requestor disagrees, an appeal may be forthcoming.

Conclusion

I hope today’s article gets you thinking more about when it might be appropriate to split a request into multiple parts. Given there is a risk that the decision to split a request up will be appealed, it isn’t a step that institutions should take lightly or perform very frequently. That said, if you receive a request that seems to be an obvious candidate for splitting up, and you expect splitting it up will lead to a better result for both your institution and the requestor, this can be a good tool to have in your repertoire, and one that isn’t well documented in the usual FOI resources.

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 Order MO-2367 (City of Toronto) decided November 25, 2008 https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/133085/index.do

IPCO Order P-1267 (Ministry of the Solicitor General and Correctional Services) decided September 26, 1996 https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/130102/index.do

Published by Justin Petrillo

I have created the 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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