Should You Include a Time Extension in Your Interim Fee Estimate?

The guidance presented in this article is intended for institutions in Ontario who respond to Freedom Of Information (FOI) requests under either the Freedom of Information and Protection of Privacy Act (FIPPA) or the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

As previously noted, institutions begin with a 30-day deadline to respond to an incoming FOI request. However, there are a number of ways that the deadline can be pushed back, including by issuing a time extension or a fee deposit request.

Time Extensions

Institutions are permitted to issue a time extension to extend the 30-day deadline if the request is for a large number of records or necessitates a search through a large number of records, and meeting the time limit would unreasonably interfere with the operations of the institution; or, if consultations with a person outside the institution are necessary to comply with the request and cannot reasonably be completed within the time limit. (See FIPPA s. 27 and MFIPPA s.20)

Fee Deposit Requests (Interim Fee Estimates)

If the institution believes that the fees with respect to the request will be $100 or more, then the institution is permitted (under FIPPA Reg. 460, s. 7(1) and MFIPPA Reg. 823, s. 7(1)) to issue a letter demanding payment of a 50% deposit before any further action is taken to process the request. This letter is sometimes referred to as an “Interim Fee Estimate”, an “Interim Access Decision” or a “Fee Deposit Request”. Although each of these names emphasizes a different aspect of the letter, they tend to be used interchangeably to refer to the letter as a whole. (For further details, see “Where The Fee Is $100 Or More” in the IPCO guidance document Fees, Fee Estimates and Fee Waivers.)

Using Both in the Same FOI Request

What if an institution expects that a fee deposit request and a time extension will both be required for the same FOI request? This is a common occurance, as the FOI requests that cost the most to process (thus requiring a fee deposit) are generally also the ones that will take the institution the most time to answer (thus requiring a time extension).

So, when an institution expects that it may be issuing both a fee deposit request as well as a time extension for the same FOI request, how should it proceed? Should the institution issue the time extension first, the fee deposit request first, or should it issue both in the same letter?

IPCO Guidance

Let’s start by considering the relevant guidance from the Information and Privacy Commissioner of Ontario (IPCO). According to Fees, Fee Estimates and Fee Waivers, “As a best practice, if the institution requires more time to respond to a request, it should issue a time extension as part of the interim access decision. The length of time it will take to receive an access decision may affect the requester’s decision about paying the deposit and continuing to pursue access [Order PO-2634]” (Recall that “interim access decision” is another name for the interim fee estimate / fee deposit request letter.)

The IPCO guidance here seems to suggest that if the institution intends to issue a time extension and a fee deposit request, they should both be set out in the same letter. But given that the guidance cites Order PO-2634 (Ministry of Natural Resources) as the authority for declaring this a “best practice”, it is worth taking a deeper look into that decision.

Order PO-2634 (Ministry of Natural Resources) decided January 9, 2008

In Order PO-2634, the appellant (the requestor) objected to the fact that he learned of a proposed 390-day time extension only after he had paid a substantial 50% fee deposit. He was “made to pay a deposit in the sum of $2,630 without having been fully informed of the length of time that the Ministry intended to take to process my request.”

Adjudicator Higgins’ actual consideration of the issue is illuminating:

In my view, the appellant makes a good point in this regard. The length of time it will take to receive an access decision (and any records that are being released) could well be a factor in a requester’s decision about paying a requested deposit and continuing to pursue access. For this reason, I have decided that institutions should be encouraged to identify that they will require a section 27 time extension, and the reasons for taking that position, as early as possible in the request process, and in the event of an interim access decision, this could be communicated in the interim decision letter. Since it is not certain when the deposit would be paid and the clock re-activated, it will not be possible to name a date by which the access decision would be given; rather, the estimate must be given by number of days, as the Ministry eventually did in this case.

On the other hand, since institutions have the entire 30-day response period to claim a time extension, and the clock is stopped by issuing the interim decision, I am not in a position to insist that the time extension be claimed in the interim access decision, but in my view this would be a good practice to adopt because it assists the requester in making an informed decision about whether to pay the deposit. Addressing the time extension issue in the interim access decision also appears to be the most practical approach for the institution, given that in formulating the fee estimate that accompanies the interim access decision, the institution would also have occasion to consider how much time it will likely require to process the request. In reaching this conclusion, I also note that time extensions may be appealed to this office regardless of when they are claimed by an institution.

Order PO-2634 (Ministry of Natural Resources)

In other words, there is a certain unfairness to a requestor being asked to pay a large, non-refundable fee deposit, only to find out shortly after paying that there may be a long wait to receive the requested documents. In this case, the requestor might have decided not to pursue the matter any further, and certainly not to pay thousands of dollars in deposit fees, had he known that the request would take a year or more to process.

On the other hand, Adjudicator Higgins made it clear that he was “not in a position to insist” that the time extension be claimed as part of the interim access decision. In other words, although the IPCO might prefer that institutions issue the time extension in the same letter as the fee deposit request, according to PO-2634, this is not a requirement.

Disadvantages to Issuing Both Together

Although Adjudicator Higgins was clearly attempting to encourage institutions to issue their time extension and fee deposit request at the same time, his Order PO-2634 alludes to some of the disadvantages of including the time extension as part of the fee deposit letter. First off, since a fee deposit request stops the clock until the deposit is paid, it is not possible to set out a new deadline in that letter; rather, the time extension can be given only as a number of days. On a related note, including the time extension in the fee deposit letter may be confusing for the requestor, who may not realize that the time before the fee deposit is paid does not count against the newly-extended deadline.

Additionally, the institution may not be in a position to issue an appropriate time extension at the same time the fee deposit request is issued. In Order PO-2634, the time extension was issued approximately a month after the fee deposit request; presumably, some additional work and potentially even consultations were required on the part of the Ministry in order to prepare the time extension.

Given that institutions are strongly discouraged from issuing more than one time extension with respect to the same FOI request (see, for example, Order PO-3849 (Ontario Energy Board) decided May 30, 2018), there are a number of other disadvantages to including the time extension as part of the fee deposit request:

  • Issuing a time extension at the same time as the fee deposit request removes the institution’s ability to use the time between issuing the fee deposit request and receiving payment to process the request, which could potentially eliminate the need for a time extension, or allow a shorter time extension to be issued
  • The institution may wind up issuing numerous time extensions with respect to files for which a fee deposit is never paid, unnecessarily increasing the workload of the institution and affecting its performance statistics

And as a practical matter, requestors suddenly faced with two “adverse” decisions in the same letter (a time extension and a fee deposit request) may be more tempted to launch an appeal, even the decisions are reasonable.

The template letters included in the FOI Manual and IPCO guidance documents do not incorporate language for including a time extension in an interim fee estimate letter, so institutions who wish to do so will have to come up with their own wording.

Suggested Approaches

If an institution is issuing an interim fee estimate, and has already determined the precise length of time extension it will need to process the file, then there may be relatively little downside to following the “best practice” by including the time extension in the fee deposit request letter. As previously noted, the main disadvantage in this situation is that the institution may need to issue a longer time extension than it otherwise would have, as there is no way of knowing how quickly the requestor’s fee deposit payment will arrive.

If an institution is issuing a fee deposit request, but there is uncertainty over whether a time extension will be required, then it is probably best to issue the fee deposit request without any mention of a potential time extension — this would be in accordance with the template letters provided in the FOI Manual and the relevant IPCO guidance.

If the institution believes a time extension will likely be required, then, to align as closely as possible with the current IPCO “best practice” guidance in this situation, the institution may wish to include language such as the following in the fee deposit request letter:

“If required, a time extension will be communicated to you in a separate letter.”

Similarly, if the institution is fairly certain that a time extension will be required, but does not yet know how long the extension will be, then to abide with the spirit of the “best practice” guidance, the institution may wish to include language similar to the following (with the numbers of days changed as appropriate):

“At this point, we believe a time extension of [30 to 60 days] may be required to process your request. If required, a time extension will be communicated to you in a separate letter.”

This language has two significant benefits. First, it addresses the concern raised in Order PO-2634, namely, that the requestor may “unfairly” pay a fee deposit before knowing that there may be a delay in receiving the requested records. Second, this language does not prematurely commit the institution to a particular length of time extension, and in fact, does not commit the institution to issuing a time extension at all.

Of course, if the institution determines that it needs to issue a time extension before it is able to issue a fee deposit request (perhaps because the end of the initial 30-day deadline is rapidly approaching), then it can issue the time extension first, and then issue a separate fee deposit request to “stop the clock” as soon as it can. In this situation, the requestor does not suffer any potential unfairness, unlike the situation in Order PO-2634 above. If following this approach, it may help to ensure that the fee deposit request letter clearly states that the clock is “stopped” until the fee deposit is paid, that is, that the extra time granted in the time extension is not being “used up” during the time that the institution is awaiting payment.

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.

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Resources

Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31

Freedom of Information and Protection of Privacy Act, R.R.O. 1990, REGULATION 460 (GENERAL) https://www.ontario.ca/laws/statute/90f31

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56

IPCO: Fees, Fee Estimates and Fee Waivers https://www.ipc.on.ca/wp-content/uploads/2018/06/fees-fee_estimates-fee_waivers-e.pdf

IPCO: Processing Voluminous Requests – A Best Practice for Institutions https://www.ipc.on.ca/wp-content/uploads/2016/08/volum-e.pdf

IPCO: Decisions https://decisions.ipc.on.ca/ipc-cipvp/en/nav.do

Ministry Of Government Services: Freedom of Information and Protection of Privacy Manual (the “FOI Manual”) https://www.ontario.ca/document/freedom-information-and-protection-privacy-manual

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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