Today’s article is for provincial and municipal institutions in Ontario who process Freedom of Information (FOI) requests under the Freedom of Information and Protection of Privacy Act (FIPPA) or the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).
Informal Requests
When an institution responds to requests for records outside the official FOI process, the FOI Manual refers to this as proceeding “informally”.
Provincial and municipal institutions have an obligation to provide records in response to FOI requests; however, this does not prevent institutions from providing records or information without using the official FOI process. Some institutions have obligations imposed by legislation to disclose certain records outside of the FOI process; others may voluntarily disclose information through informal means as a convenience for the public and to avoid the rigid formality and additional steps imposed by the FOI system.
An “informal request” in this context simply means a request that is not made under the FOI process described in FIPPA/MFIPPA. Informal requests are often thought of as requests for information made verbally or by casual email. However, informal requests can take many different forms; sometimes, a request form may even be used. Some of the more complicated non-FOI processes may be quite formal themselves and are occasionally (and somewhat confusingly) described as other “formal” request processes.
Advantages of proceeding informally
Proceeding informally gives an institution more flexibility about how to respond to requests. For example:
- The request doesn’t need to be in writing
- The information provided does not have to take the form of “records” and may not even have to be in writing (i.e., in some cases a verbal response may be sufficient)
- The institution does not have to charge the $5 application fee required by FIPPA/MFIPPA (i.e., the institution can provide the records “for free”, or may charge a different amount)
- The 30-day deadline under FIPPA/MFIPPA does not apply
- Much of the formal FOI process can be avoided, such as time extensions, fee estimate letters and decision letters
If an institution has a special process where records are provided to requestors either at no charge, or under some service fee schedule that isn’t intended to reflect the fee schedule under FIPPA/MFIPPA, then from an FOI perspective, the institution is still providing the records “informally” and the complexity of the FOI process under FIPPA/MFIPPA can be avoided.
Example: Schools
Schools in Ontario are required to provide records on request under MFIPPA as well as under the Education Act. Schools may also provide information outside of any formal process. As described by the Information and Privacy Commissioner of Ontario (IPCO):
If a student, or their parent or guardian, wants to access the student’s personal information, they might choose to ask for the information informally, by asking the child’s teacher for a particular record, for example. If an informal request does not work, or the records are numerous and lengthy, they may choose to make a formal access request. The request can be made under the Education Act or MFIPPA, or both.
IPCO, “A Guide to Privacy and Access to Information in Ontario Schools”
Most information disclosed by schools to parents and students is disclosed informally, with formal processes under the Education Act and MFIPPA serving as secondary, “backup” methods for parents and students, intended to be used only when needed.
Disclosure exemptions apply to informal requests
Keep in mind, even if an institution decides to provide information outside the official FOI process (such as in response to a verbal request) the rules from FIPPA and MFIPPA about what an institution may and may not disclose still apply. For example, regardless of whether information is being disclosed under the FOI process or informally, institutions can’t disclose information that would constitute an unjustified invasion of personal privacy of another person. Institutions should still consider themselves bound by the non-disclosure rules of FIPPA/MFIPPA unless there is another legislative authority for disclosing the relevant records or information.
The requestor can always submit an FOI request
The fact that an institution is willing to proceed informally or offers a special process for obtaining certain records doesn’t prevent members of the public from submitting an FOI request for the same records. A requestor who is not satisfied with how their informal request was handled, or who chooses not to use an alternative request process offered by the institution, can submit an official FOI request for the desired records at any time. If the requestor decides to submit a formal FOI request together with a $5 application fee, then the institution must process the request under the rules of FIPPA/MFIPPA, even if the institution also offers an informal method for requesting such records.
Why are requestors allowed to use FOI to obtain records that the institution offers by other means? One can think of FOI legislation as serving two purposes: First, it gives the public access to records that institutions may previously have had no process for disclosing. But additionally, it gives the public a “guaranteed” process for accessing records, with strict timelines and legislated fees, that requestors can always choose to “fall back” on if an institution’s other disclosure processes are found lacking.
Exception: Publicly Available Information
Both FIPPA and MFIPPA contain an exemption for information “that is already publicly available or published or will be published within 90 days of receipt of the request, or within such time as is necessary for printing or translating material.” This exemption is found in FIPPA s.22 and MFIPPA s.15.
As noted in the FOI Manual:
This exemption also allows institutions to refer requesters to existing publications and information that is, or soon will be, publicly available.
According to decisions of the IPC, in order for the institution to claim this exemption, the requested record must be either published or publicly available through a regularized system of access. Examples of a regularized system of access include a public library or a government publication centre.
Where there is a fee to obtain the information, the information may still be considered publicly available as long as the fee is applied to anyone who wishes to obtain the information and the fee is not prohibitively expensive. The pricing structure of the supplier does not have to align with the fees set out in the legislation.
FOI Manual, Chapter 5
This means that if records are made available to the public, even for a fee, institutions are allowed to rely on this as a basis to refuse to provide such records in response to an FOI request.
Note, however, that this does not include records containing personal information which is made available under an informal process only to the individual(s) to whom it relates; the “public information” exemption applies only to public records, that is, records that are available to every member of the public upon request.
Example: Police Services
Some police services require individuals to submit an official FOI request for police reports. Other police services might be willing to provide police reports through an informal process, perhaps in response to verbal requests, or the submission of an application form. Under the informal process, services may provide the records at no charge, or may set a reasonable fee for disclosing such records. However, if a requestor is not satisfied with the service they receive under the “informal” process, they can always go back to the institution with an official FOI request together with their $5 application fee, in which case the institution would be required to abide by the basic 30-day deadline, charge the FOI fees set by legislation, provide a decision letter, justify redactions with reference to exemptions under FIPPA/MFIPPA, and so on.
(For what it’s worth, IPCO seems to assume that most police services will process requests for police records containing the personal information of the requestor as formal FOI requests. I recommended police services read the Privacy Commissioner’s guidance on this topic here: https://www.ipc.on.ca/how-to-access-your-police-held-records/. See also IPCO guidance document “Making an Access Request to a Police Service”.)
How to tell if a request is formal or informal
If an institution is willing to provide certain records informally, a question that will naturally arise is “how can I tell whether a request is an official FOI request or just an informal records request?”
If it is an official FOI request, the requestor should make it clear that they are asking for information under FIPPA/MFIPPA and provide the $5 application fee. (For the full list requirements for a valid FOI request under FIPPA and MFIPPA, see my previous article, “What are the requirements of a valid Freedom of Information (FOI) request?”)
That said, if it is not clear from a request whether the requestor is seeking to proceed formally under FIPPA/MFIPPA or informally, it is generally a good idea to contact the requestor to clarify this, rather than to assume one way or the other.
One way that requestors can be sure they are making an official FOI request under FIPPA/MFIPPA is to use the IPCO form for making an FOI request. If a requestor submits a request to an institution using this form and pays the $5 application fee, the requestor is unambiguously submitting an FOI request under FIPPA/MFIPPA, regardless of any other disclosure process that the institution may also offer.
Offering to process an FOI request informally
Of course, even if a requestor has submitted an FOI request, it is still open to the institution to ask the requestor if they would prefer to proceed “informally”. If the requestor agrees, the institution is then permitted to proceed outside the formal FOI request process.
The FOI Manual offers the following helpful advice about offering to process requests informally:
Informal Requests
The legislation does not prevent giving access to information in the absence of a formal request. This is referred to as an informal request. Informal requests are not processed under the legislation and allow an institution to handle a request verbally.
FOI Manual, Chapter 6
To handle a request informally, the individual and institution must be in agreement to do so because the individual loses the opportunity to appeal an institution’s decision on access. Any agreement to manage the request informally should be confirmed in writing with the requester.
In other words, if a requestor does agree to abandon their FOI request and proceed informally, it is best to confirm this in writing to ensure the requestor doesn’t later take the position that their official FOI request went unanswered.
Are “informal requests” the same as “routine requests” or “routine disclosure”?
Routine Requests
According to Chapter 6 of the FOI Manual, “A routine request is straightforward in terms of search, content, disclosure, and decision-making. Routine requests are requests where responsive records are on a related topic and frequently requested.” As described in this context, a “routine request” is an official FOI request made under FIPPA/MFIPPA, and would still require a $5 application fee, decision letter, etc.
An institution may “routinely” process certain requests for information informally, but this is not the meaning of the term “routine request” as defined in the FOI Manual. Therefore, “routine requests” should not be considered synonymous with “informal requests”. That said, institutions may wish to come up with special internal processes to simplify and expedite the processing of routine requests in a manner that is compatible with processing an FOI request under FIPPA/MFIPPA. Alternatively, institutions may wish to set up an “informal” request process for dealing with certain routine requests and thereby avoid the FOI process completely—as long as requestors play along! (See “The requestor can always submit an FOI request” above.)
Routine Disclosure
The FOI Manual also describes “routine disclosure”, which is the “open government” practice of making certain records readily available to the public on a routine basis, that is, on a fixed schedule rather than in response to a request for such records. For example, an institution might decide to publish all of its employee expense reports on its website on a quarterly basis for the purpose of increasing transparency.
“Informal requests” and “routine disclosure” are distinct concepts, but both can be considered types of “informal access” expressly permitted under FIPPA and MFIPPA:
If a head may give access to information under this Act, nothing in this Act prevents the head from giving access to that information in response to an oral request or in the absence of a request.
FIPPA s.63(1) and MFIPPA s.50(1)
See Chapter 4 of the FOI Manual for more.
Can requestors appeal an informal request to IPCO?
There is no official right to appeal an informal request to IPCO and in general I do not believe they would be open to hearing an appeal of a request for records that proceeded informally. That said, I would never want to promise that IPCO will refuse to hear a case! For example, I can think of one situation where an appeal might be accepted: if there was some issue as to whether the request really was an informal request. If the requestor had reason to believe what they submitted to an institution was an official FOI request and they expected it to be processed as such, but the institution treated it as an informal request, perhaps an appeal could proceed on that basis.
That said, a requestor who wants to preserve their right to appeal an institution’s disclosure decision to IPCO should ensure they start with a formal FOI request under FIPPA/MFIPPA.
Do institutions have to cite exemptions when redacting records provided in response to an informal request?
If a request is proceeding informally, the institution doesn’t have to follow the rules that apply to official FOI requests under FIPPA and MFIPPA, such as citing exemptions when redacting information. That said, institutions still need to ensure they aren’t disclosing any information that they aren’t allowed to, so institutions may still need to redact information in certain cases, even for informal requests.
Conclusion
Being willing to respond to informal requests can offer many advantages for institutions while also potentially providing better service for members of the public who are seeking records and other information. By avoiding the complexity and overhead of the FOI process, informal requests allow institutions to quickly and informally respond to requests, or to set up their own process for handing requests, while also preserving the public’s right to employ the FOI process when informal requests fail to achieve their intended result.
Run your FOI process more effectively
If there’s one takeaway from today’s article, it’s that there’s no way for institutions to opt-out of running an effective FOI program. Even if your institution is willing to provide records informally, requestors are always free to file a formal FOI request if they are not satisfied with the results of the informal process.
If you are at a provincial or municipal institution in Ontario, the best way to improve the performance of your institution’s FOI program is to use the FOI Assist software. The FOI Assist software guides you through the process under FIPPA or MFIPPA and significantly reduces the time your institution takes to process an FOI request. The FOI Assist software runs “in the cloud” and is accessed via your web browser, just like LinkedIn or Facebook. And it has a modern, easy-to-use interface; a 30-minute videoconference is all it takes to get your institution up and running.
For more information, read the release announcement, or better yet, book a demonstration to see for yourself how much of the FOI process the software can take care of for you.
FOI Assist 