What happens when a requestor sends a Freedom of Information (FOI) request to the wrong institution? In Ontario, the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) provide two closely related mechanisms for institutions to handle this situation: Forwarding a request, and transferring a request.
Forwarding a Request
FIPPA 25(1) / MFIPPA 18(2)
If the institution does not have custody or control of the requested records, FIPPA and MFIPPA require that the institution make inquiries to determine whether another institution has the requested records. If so, the institution that originally received the request must “forward” it to such other institution.
In these circumstances, forwarding a request is mandatory. The institution has an obligation to help the requestor find another institution that is a better target for the access request; it is not sufficient to merely notify the requestor that the institution to which the request was addressed does not have the requested records, if there is another institution that likely does have them.
Transferring a Request
FIPPA 25(2) / MFIPPA 18(3)
In contrast, transferring a request is discretionary. Sometimes, an institution will have records responsive to the request, but it believes that another institution has a “greater interest” in the records and may be in a better position to make an access decision. This situation can occur when one institution holds copies of records that were originally produced in or for the other institution, or where the other institution was the first to receive the requested records (or copies of them).
In this case, the institution that originally received the request may “transfer” it, in whole or in part, to such other institution.
The ability to transfer a request also serves to protect institutions from requestors who may request the same records from multiple institutions, hoping to benefit from inconsistent disclosure. By allowing institutions to transfer requests to the most applicable institution, duplicative work is avoided, and the institution best situated to search for and make disclosure decisions with respect to the requested records is given the opportunity to do so.
How to Forward or Transfer a Request
In either case, to forward or transfer a request, the institution should take the following steps:
1. If necessary, make inquiries to determine if another institution has the record (for forwarding), or has a greater interest in the record (for transferring)
These inquiries may involve contacting other institutions to determine whether it would make sense to transfer or forward the request to them; alternatively, internal inquiries may be sufficient to determine whether another institution is a better target for the request.
2. Forward or transfer the request (as applicable) to the other institution
This is accomplished by sending a letter to the other institution notifying them of the transfer and including the wording of the original request as well as the contact details of the requestor. Additionally, the institution that originally received the request must issue a letter to notify the requestor about the transfer and to let them know which institution will now be processing the request.
If you are using the FOI Assist software, you can generate these letters using the “Transfer or Forward Request” feature available from the Work On File screen. If you are processing FOI requests manually, template letters are available in Appendix 4 of the FOI Manual.
If the institution intends to forward or transfer a request, it must do so within 15 days after receiving the request. In either case, the basic 30-day deadline to issue a decision letter is calculated based on the date the request was originally received by the first institution, which means that the institution who winds up processing the request will have less time than usual to respond.
To mitigate this loss of days, the original institution should forward or transfer the request as quickly as possible, and not wait for the full 15 days that are officially permitted to transfer the request. Further, the FOI Manual helpfully suggests that the original institution telephone or email the other institution as soon as possible to notify them of the incoming transfer.
Handling Application Fees
In most cases, if the requestor has submitted an application fee by cheque or money order made out to the original institution, the original institution will want to return the application fee payment to the requestor and advise them to submit a new application fee payment to the institution that will be processing the request.
FIPPA and MFIPPA offer no clarity on whether returning the original application fee to the requestor “stops the clock” (or even resets it), nor am I aware of any guidance or decision of the Information and Privacy Commissioner (IPCO) that addresses this. The safest option for the second institution would seem to be to process the request as though the application fee had already been paid; that said, if the new application fee has still not arrived by the time the decision letter is issued, the second institution would seem to be on solid ground demanding payment of the $5 application fee (in addition to any other fees owing) prior to disclosing the requested documents.
In practice, I expect institutions may frequently “forget” about collecting the $5 application fee for transferred requests, as chasing after this amount from a requestor who has already submitted the fee to another institution may be more trouble than it is worth.
If the original institution and the second institution are the same payee, then the original institution is free to deposit the application fee on behalf of the second institution, or alternatively, to forward the application fee to the second institution. (This may be more relevant to the various Ministries and other provincial institutions who use the same payee information: “Ministry of Finance”.)
If the institution has received payment in some other way (e.g., credit card or e-transfer) and the second institution does not use the same payee information, the original institution will likely want to refund such payment to the requestor and instruct the requestor to pay a new application fee to the second institution. That said, given the administrative burden than may be required to reverse a credit card or e-transfer, and the additional hassle created by requiring the requestor to issue a new $5 payment to the second institution, I would personally be sympathetic if the original institution and the transferee institution reached an informal agreement to simply “consider the fee paid” rather than undergoing a disproportionate administrative effort to ensure that the $5 fee was eventually received by the correct public institution (although I am unaware of any IPCO guidance or decision on point).
“All Necessary Inquiries” vs. “Reasonable Inquiries”
FIPPA was Ontario’s first Freedom of Information legislation. Three years later, it was followed by MFIPPA, which expanded Ontario’s Freedom of Information regime to its many municipal institutions. In many cases, the language in MFIPPA is merely a copy of the equivalent section from FIPPA. However, the “forwarding” language found in FIPPA s.25(1) vs. MFIPPA s.18(2) is an exception.
Specifically, FIPPA s.25(1) states that provincial institutions shall make “all necessary inquiries” to determine whether another institution has custody or control of the record, whereas MFIPPA s.18(2) merely requires that municipal institutions must make “reasonable” inquiries. Why the different language?
One theory could be that MFIPPA came later, and the legislators believed the FIPPA language asked too much of institutions, so they “toned it down” for MFIPPA. Another theory would be that simply more is expected of provincial institutions, who represent a smaller group (FIPPA covers fewer than 400 institutions, whereas MFIPPA applies to around 1,100) including all provincial ministries as well as provincial agencies, boards and commissions. MFIPPA includes many smaller municipalities, library boards, school boards, conservation authorities, etc., who may only receive a handful of requests a year. The legislature may have been trying to limit the burden placed on such organizations to ensure Freedom of Information requests were forwarded to the appropriate institution.
In any case, the difference in the wording between FIPPA and MFIPPA here would seem to suggest that provincial institutions (that is, those which come under FIPPA) are expected to put in more effort investigating whether there is another institution to which the request should be forwarded.
What is an “Institution”?
Normally, under FIPPA, the word “institution” refers only to institutions to which FIPPA applies, i.e., provincial ministries, agencies, boards, commissions, hospitals, universities and colleges. Specifically, in FIPPA, the word “institution” does not refer to institutions to which MFIPPA applies (such as municipalities, police services, school boards, library boards, etc.) And the reverse is also true: the word “institution” in MFIPPA does not apply to FIPPA institutions.
However, for the purpose of forwarding or transferring files, the definition of “institution” in each Act is expanded to cover all institutions in both FIPPA and MFIPPA.
In FIPPA, the language is found in s.25(5) and is as follows:
In this section, “institution” includes an institution as defined in section 2 of the Municipal Freedom of Information and Protection of Privacy Act.Freedom of Information and Protection of Privacy Act, s.25(5)
In MFIPPA, the equivalent language is found in 18(1):
In this section, “institution” includes an institution as defined in section 2 of the Freedom of Information and Protection of Privacy Act.Municipal Freedom of Information and Protection of Privacy Act, s.18(1)
What this means is that provincial (FIPPA) institutions are expected to forward requests to municipal (MFIPPA) institutions as appropriate, and vice versa. Similarly, provincial and municipal institutions are permitted to transfer requests to each other as well.
I hope today’s article has served to introduce some of you to the practice of forwarding and transferring requests, and for those of you already familiar with the practice, I hope you enjoyed the refresher and the quick dive into some of the more advanced aspects.
Remember to always ask yourself, upon the receipt of a new request: are we the right institution to answer this? By promptly forwarding or transferring requests whenever appropriate, institutions can provide a better experience for requestors, while also reducing their own workload.