Should your institution accept FOI requests online?

Image excerpted from the Ministry of Government and Consumer Services’ “Access or Correction Request” HTML form

It’s now been over 20 years since Statistics Canada first reported that over 50% of Canadian households had at least one member who was a regular Internet user. The well-known online store Amazon.com first started selling books over the internet in 1995, over 25 years ago. As more and more commercial and government services move online, many are surprised that Ontario’s freedom of information process is still conducted entirely by mail, at least at the vast majority of institutions.

Has your institution ever considered accepting Freedom of Information requests online? Alternatively, have you ever wondered why there are so few institutions in Ontario that accept online requests?

Today’s article is intended to dive into the complexities of accepting FOI requests online, and to help you evaluate whether accepting FOI requests online makes sense for your institution.

Obtaining the Identity of the Requestor

In Ontario, to make a request under either the Freedom of Information and Protection of Privacy Act (FIPPA) or the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), a person seeking access to a record from a provincial or municipal institution must:

  • make a request in writing to the institution that the person believes has custody or control of the record
  • specify that the request is being made under the Act (either FIPPA or MFIPPA)
  • provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record
  • at the time of making the request, pay the fee prescribed by the regulations for that purpose (which is currently $5.00)

Now, FIPPA and MFIPPA (the “Acts”) were first enacted in 1988 and 1991, respectively, well before the internet had reached the homes and workplaces of most Canadians. The Acts assumed that a request made “in writing” meant on paper, which would generally be mailed to the relevant provincial or municipal institution. It went without saying that the requestor would have to provide their name and a physical address along with the request, if for no other reason than to allow the institution to respond.

Accepting Requests by Email

Of course, using the internet, it is much easier to communicate anonymously, or under a pseudonym. Any institution that accepts requests by e-mail will have to face the dilemma of receiving requests that have no identifying information attached to them, other than an anonymous email address. Even where there is an actual name associated with the incoming email, in many cases, the email will not include other helpful information about the requestor, such as their mailing address or phone number.

The institution must then decide how it will handle these anonymous or semi-anonymous requests. The institution might be willing to process the request without obtaining the requestor’s name, address and telephone number, although this will force the institution to communicate only by email unless the requestor can be convinced to provide further contact information. Of course, taking this approach will leave the institution vulnerable to requests under assumed identities, and to requestors filing multiple requests under different names.

Alternatively, the institution may take the position that the provision of a name, a physical address and possibly a telephone number is required before the request can be processed. Institutions that insist on receiving this additional contact information may receive pushback from the requestor, as there is no explicit requirement in the Acts for the requestor to provide it. The institution may find itself arguing with an anonymous person without even knowing if such person is communicating from within Ontario or even Canada. In any case, there will be some additional work involved in screening and processing and incoming requests that arrive without full contact information for the requestor.

Finally, as with any email address posted publicly to the internet, institutions will have to face the problem of “spam” (unsolicited emails) coming to their intake email address for FOI requests.

Example: Metrolinx

Transportation Agency Metrolinx has started accepting FOI requests by email as a COVID-19 measure. Fees are collected separately by mail: “Where possible, application fees and processing fees should continue to be paid by mail, using social distancing practices.” For requestors for whom this may pose an issue, they may have other options available: “If you are unable to pay fees by mail during this time, please contact FOI@metrolinx.com or call (416) 202-7382 for assistance.

Example: Legal Aid Ontario

Similarly, Legal Aid Ontario (LAO) has started accepting FOI requests by email as a COVID-19 measure. LAO has declared it will not collect the $5.00 application fee for personal information requests (which make up the vast majority of LAO’s incoming FOI requests), presumably to get around the complications of collecting payments online: “Due to operational changes as a result of COVID-19, LAO is accepting Freedom of Information requests electronically on a temporary basis. Email your request to fippa@lao.on.ca. The $5.00 application fee for personal information requests will not be collected at this time. We will make all efforts to process requests in a timely manner, however there may be delays or service interruptions. We appreciate your patience.

Using an Online Form

To help collect all of the information that the institution requires to process an FOI request, some institutions provide an online form that the requestor must complete in order to submit their request online.

An online form can be configured to refuse submissions that do not meet some standard of completeness. For example, the form may not allow requestors to proceed without first filling in their first name, last name, and address.

However, there are some drawbacks to using an online form. First, the institution must set up the form online. There are services that allow you to set up online forms, but do they meet your institution’s accessibility, language and privacy requirements? Do they send data outside of Canada? Are they from a vendor you can trust?

And of course, once the form is made available, it must be maintained and supported. Requestors may complain if the service goes offline, or if they are unable to figure out how to submit a request online.

Example: Ministry of Government and Consumer Services

The Ministry of Government and Consumer Services maintains an online FOI request submission form called “eRequest” which allows you to submit an FOI request directed to various provincial ministries and agencies. However, attempting to use the form helps bring some of the potential drawbacks of attempting to accept FOI requests online into focus.

First, the process is counterintuitive: you are referred by the relevant ministry to the “Ontario Central Forms Repository” where a list of 3 forms is shown. The first form can be downloaded and mailed-in, which seems simple enough.

The second form is labelled “FIPPA – Access or Correction Request (Online)”, but when I attempted to open it using the latest version of the Google Chrome browser, I received an error message: “The document you are trying to load requires Adobe Reader 8 or higher. You may not have the Adobe Reader installed or your viewing environment may not be properly configured to use Adobe Reader.” I was able to work around this by first downloading the form and them opening it from the desktop outside of my browser. The form requires the requestor to fill in a date range for the records requested, which seems like a potential misconfiguration as this may not be applicable for every FOI request.

The third form appears to be a copy of the second form, but in an “HTML” format so that it loads as a web page in your browser. (This third form would be my recommended starting point for anyone looking to submit an FOI request using the Ministry of Government and Consumer Services’ online process.)

At the end of the Ministry of Government and Consumer Services’ eRequest process, the requestor is prompted to pay the fee by credit card or debit card. This is a good reminder that if your institution wants to accept FOI requests online, you must also consider whether you will accept online fee payments as well.

Example: City of Toronto

The City of Toronto has a very short online form for accepting FOI requests. Here, the only mandatory field is the “records requested”. The “city division”, “start date” and “end date” are also available, but are optional. Initially, I was left wondering how the City would contact the requestor given no contact information is submitted using this form. However, it turns out the requestor’s contact information is collected after confirming the details of the request, as part of the payment process. The initial $5 fee must be paid online using a credit card, and the requestor’s address and telephone number must be submitted to complete this part of this process. The requestor’s email address is optional.

Notably, the way this form is set up would seem to require a requestor to use their own credit card to pay the fee. Therefore, a requestor would have to have a credit card in their own name in order to use this online submission process.

Payment of Fees

Initial Fee

If your institution is considering accepting online requests, you will also need a process for accepting payment. Is your institution already set up to accept card payments online? Alternatives include accepting cheques or money orders by mail, but this would seem to defeat much of the advantage of accepting FOI requests submitted online, and further, may create additional work as incoming payments have to be matched up with FOI requests received online which may not have even been assigned a file number.

As e-Transfers continue to gain acceptance in Canada, they may provide a promising alternative for accepting payment for FOI requests submitted online, and perhaps even for fee deposits and other payments as well.

Additional Fees

If your institution will accept payment of the initial fee online, will it also accept payment of all other fees online? Requestors might assume that if they can pay the initial fee online, they will be able to pay all fees related to the request the same way. But to support this, the institution will need a system for charging the requestor the varying amounts that need to be paid during the FOI process, including the 50% fee deposit and the payment of the final fees associated with each request (such as printing costs, time spent, etc.), as well as refunds.

Correspondence with Requestor

Privacy

After the initial request is submitted online, will the institution continue to communicate with the requestor electronically, or will it revert to regular mail? The sensitivity of the information being requested may be relevant here. If you are using an online form to accept FOI requests, as part of that form, you may wish to obtain the requestor’s explicit, informed consent to communicate by email, with the potential risks that may entail.

Disclosure of Documents

If the institution accepts requests online, and additionally sets the expectation that all communication will be conducted electronically, does this create an expectation that the requested documents will be disclosed electronically as well? As described in a previous article, there are may reasons why an institution may not wish to disclose documents electronically. Whether the Information and Privacy Commissioner of Ontario (IPCO) will compel an institution to provide requested documents electronically is an open question whose answer may vary depending on circumstances, but if an institution has migrated its entire FOI process online, IPCO might consider this a relevant factor in favour of electronic disclosure of records.

Timing Issues

Although accepting FOI requests online is good customer service for requestors, moving the process online may create new pressures on institutions. The delays associated with regular mail create a bit of helpful friction in the process that institutions may be taking for granted.

Imagine speaking with a journalist over the phone who is seeking information, and telling them they’ll need to submit an FOI request to obtain it. If the institution accepts FOI requests online, the request might arrive just a few minutes after the call.

Similarly, fee estimate requests have traditionally given the institution at least a one-week reprieve as the fee estimate travels by post to the requestor, the requestor cuts a cheque or obtains a money order, and the payment travels back to the institution. With electronic communication and online payments, the institution may receive payment the same day the fee estimate is sent, and as a result, the “deadline clock” will continue uninterrupted.

Finally, emails and online payments may occur at all hours. A fee payment or clarification email received late in the afternoon on the last day of a long weekend might mean the loss of four days from the clock.

Theoretically, this faster service is better for the requestor and should not be unmanageable for the institution, who is not intended to be working on the request while the clock is stopped. In practice, removing these pauses from the institution’s process may make it harder to handle multiple requests concurrently, as there may be little opportunity to step away from one request in order to temporarily focus on another. The instantaneous nature of electronic communication may also expose faults in the institution’s FOI process, where it previously relied on the breathing room provided by the pace of regular mail.

Conclusion

If you or your institution has been thinking about accepting FOI requests online, I hope this article has helped by setting out some of the issues that may arise. With the right planning and tools, institutions such as Ministry of Government and Consumer Services and the City of Toronto show that it can be done. That said, if accepting FOI requests online were straightforward, more institutions would be doing it already!

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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