Action plan for large FOI requests

Today’s article is intended mainly for institutions processing FOI requests under Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) or the Municipal Information and Protection of Privacy Act (MFIPPA) (the “Acts”).

Large Requests

Getting a large request can feel a little intimidating, especially if your institution doesn’t process a high volume of requests each year. At institutions that process a lower volume of requests (perhaps fewer than 15 a year), it’s not uncommon for just one large request to result in more work and document volume than all of the institution’s other requests in the same year combined.

Today’s article is intended to give institutions a plan of action they can follow when a large request is received in order to help them process large requests in compliance with the tight timelines set out in the Acts. (If you’d prefer to start with a basic introduction to the FOI process, refer to this earlier article.)

First Things First

Does the request require clarification?

After considering the basic formalities, such as whether the request included the $5.00 application fee, or whether the request should be transferred or forwarded to another institution, the most important “initial step” is to consider whether the request is “clear”, that is, whether the requestor needs to provide more detail before the institution can process the request. If the request requires clarification, the request is considered invalid as of the day it was first received, which means the 30-day clock doesn’t start until the request has been clarified.

It’s quite common for a large request to be unclear, because when a large number of documents is being requested, or when a “sweeping” request for documents is made, it’s often the case that the requestor doesn’t know exactly what they are looking for. In such cases, the requestor will frequently require the assistance of the institution to draft a request that is unambiguous.

Keep in mind, you may need to seek assistance from staff at your institution who are more familar with the requested records to determine whether a request is “clear” or “ambiguous” (i.e., needs clarification). For larger requests, this may even involve consulting multiple staff, or different departments of the institution. Such staff may also be able to provide helpful advice on narrowing, forwarding/transferring, and with time estimates a well.

Narrowing

Once the request is confirmed to be clear and unambiguous, the institution may wish to call the requestor to see if they are willing to narrow the scope of their request. This involves asking the requestor to voluntarily “ask for less”, generally on the basis that they can expect lower fees and a faster turnaround time if they are willing to reduce the scope of what they are asking for. Attemping to narrow a request can be especially fruitful for larger requests, where minor changes in the wording of the request can result in hundreds of hours of savings of institutional labour (and a corresponding reduction in the fees charged to the requestor).

Interim Fee Estimate

Once the institution has turned its mind to clarifying and narrowing the request, experienced FOI professionals know it’s almost always a good idea to proceed to issuing an interim fee estimate and fee deposit request as soon as possible when processing a large request.

Getting into the practice of issuing an interim fee estimate as early as possible in the process is perhaps the most important thing an institution can do to help manage the workload generated by large requests.

For institutions that do not process many requests each year, learning how to issue a compliant interim fee estimate may feel somewhat intimidating. However, it’s an important and worthwhile step, for all the following reasons:

  • Issuing an interim fee estimate “stops the clock”, that is, the days after sending a fee deposit request do not count against the institution’s basic 30-day deadline to respond to the FOI request, and the clock does not resume until the day the fee deposit is paid.
  • Issuing an interim fee estimate may prompt a discussion with the requestor to voluntarily narrow their request. Some requestors are uninterested in narrowing their request early on, when the benefits are abstract and nebulous—but when confronted with an interim fee estimate in the three or four figure range, the case for narrowing can suddenly become much clearer.
  • The Information and Privacy Commissioner of Ontario (IPCO) frowns on the issuance of multiple discretionary time extensions for the same FOI request. As a way of getting around this limitation, issuing an early interim fee estimate provides “breathing room” and effectively extends the deadline without “using up” the time extension.
  • Additionally, by issuing an interim fee estimate first, you will get a much better idea of how much work the request should require, which will help you issue a time extension of appropriate length.
  • Perhaps most importantly, unlike a discretionary time extension, an interim fee estimate puts the onus back on the requestor—not only to respond, but to pay the required fee deposit.

In response to an interim fee estimate and fee deposit request, the requestor might pay the deposit, ask for a reduced estimate or waiver, seek to narrow the request, or appeal the fee deposit itself. But, perhaps just as likely as any of these, the requestor may well abandon the request, resulting in a significant reduction to the institution’s overall workload.

I’m unaware of any official statistics, but it would not surprise me to learn that anywhere from a third to half of large requests are abandoned by the requestor at the interim fee estimate stage. There’s not much stopping a requestor from paying a $5.00 application fee and asking for a large assortment of records that might require tens or even hundreds of hours of the institution’s time to locate and prepare. However, being put in the position of having to pay a large 50% fee deposit puts many requestors in the position of reconsidering whether their request is truly worthwhile.

If you are interested in learning more about how to issue an interim fee estimate, the Information and Privacy Commissioner of Ontario has very helpful and detailed guidance document on the topic: Fees, Fee Estimates and Fee Waivers (June 2018).

The FOI Assist software is of great help when creating interim fee estimates as well. Similar to tax preparation software, the FOI Assist software guides you through the steps of preparing an interim fee estimate, takes care of all of the math for you, and then even generates the completed fee estimate letter for you, with no need to start with a “template” fee estimate letter and update it for each request. The FOI Assist software can reduce the work involved in drafting an interim fee estimate letter from hours to minutes.

To see the FOI Assist software in action, including using the software to create an interim fee estimate, please don’t hesitate to request a demonstration.

Time Extension

After you have prepared and sent out the interim fee estimate, you should have a much better handle on how much time your institution will need to find and prepare the records responsive to the request. If the requestor does pay the 50% deposit, it is then a reasonable time for the institution to consider whether issue a discretionary time extension. As outlined in a previous FOI Assist Knowledge Base article, an institution may extend the basic 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.

Index of Records

Although not mandatory for every request, it is strongly recommended that the institution begin to prepare an index of records as records are located, especially when working on a larger request. This will often be accomplished in two stages: first, creating an inventory of the titles, dates and page counts of all of responsive records (or record groups) found, and later, adding disclosure decisions, applicable exemptions and comments/explanations to that same inventory of records. The FOI Assist software is of great assistance with this as well.

The index of records can be invaluable for staying organized should the request require the institution to undertake the affected person process. It is recommended to include a copy of the index of records with the final decision letter as well, especially for larger requests.

General Tips

Don’t be afraid to read the FOI Manual. Responding to a large request can take months, which presents a good opportunity to get more familiar with all of the relevant steps in the FOI response process, a little bit at a time.

The FOI Assist Request Process Flowchart is another excellent resource for reviewing the steps that may be involved in answering any request.

If you are located in Canada and would like a free printed copy of the flowchart, just let me know. And if you work as part of a team of FOI professionals, feel free to request copies for your colleauges as well.

Conclusion

I hope this article is useful to you the next time a large request comes in, and helps you overcome what may just be the biggest hurdle when processing a large FOI request: where to start?

And if you aren’t already issuing an interim fee estimate as a matter of course when a large FOI request arrives, let this be your main takeaway: issue an interim fee estimate early on whenever a large request comes in! (Remember, the FOI Assist software makes it easy.) I promise it will be worth it, and should significantly reduce your workload overall.

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.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: