Private Company, Public Access?

In FOI Assist Seminar #5, we explored how Ontario’s public institutions can establish alternative systems of access to records, potentially allowing them to refuse formal Freedom of Information requests under section 22(a) of FIPPA or section 15(a) of MFIPPA.

Following the seminar, a reader reached out with an interesting follow-up question:

Does an alternative system of public access have to be operated by the institution itself, or can an institution rely on a system of access operated by a private company?

An Information and Privacy Commissioner of Ontario (IPCO) decision from 2008 provides some useful guidance on this question.

Can a Private Company Operate an Alternative System of Public Access?

In Order PO-2737 (Ministry of Community Safety and Correctional Services), the Ministry argued that a radar speed detection system manual was publicly available because it could be purchased from a private distributor.

In considering whether access through a private distributor could satisfy section 22(a) of FIPPA (the provincial equivalent of section 15(a) of MFIPPA), the IPCO adjudicator stated:

There is some debate in previous orders of this office surrounding whether a record can be available to the public when the system of access is through a private sector entity. I have considered various orders on this point, including Order P-496, and in my view, it is no impediment to the application of section 22(a) that the source of access is a private as opposed to a public entity. To find otherwise would be to ignore the clear wording of the section, today’s commercial reality and the existence of internet sources for written materials. To the extent that this finding may conflict with past decisions of this office, then I respectfully decline to follow them.

In other words, an alternative system of public access can qualify even when it is operated by a private (non-governmental) entity.

This means that institutions are not necessarily limited to relying on alternative access systems they have established themselves. And the private entity doesn’t have to be acting on behalf of the government, either. It may simply be selling the record to the public for a profit, or making it available for its own purposes.

Offering to Sell a Record Isn’t Enough

However, the fact that a private company is willing to sell a requested record doesn’t automatically mean that the publicly available information exemption applies.

For an alternative access system to qualify, the IPCO established three requirements:

1. A system of access must exist.
2. The record must be available to everyone.
3. There must be an established pricing structure applied to everyone wishing to obtain the information (which may include providing access for free).

In addition, the price must not be so high as to effectively prevent access.

Importantly, access must genuinely be available to every member of the public. If the private company retains discretion to decide who may obtain the records, the exemption may not apply.

Interestingly, in Order PO-2737, the IPCO ultimately found that the exemption did not apply because the distributor did not have an established, regularized system of public access.

Instead, the adjudicator found that the distributor was responding to requests on an ad hoc basis:

The U.S. manufacturer’s website contains an unequivocal statement that (subject to certain limitations discussed below) it sells operator’s manuals (although U.S. only) for specific models of radar and laser equipment. That said, there is no evidence from the Ministry or the third party that the requested Operator’s Manual for the specified Radar Speed Detection System is actually available through the U.S. manufacturers website, nor do they point to a statement of availability on the Canadian distributor’s website. Instead, the Ministry points to a conversation with the President of the Canadian distributor as well as a letter and emails, as discussed below, which vary as to their terms. In my view, this does not demonstrate a “system of access” but rather an ad hoc response to the specific request in this appeal. In my opinion, the Ministry and the affected party have failed to provide me with sufficiently cogent evidence to establish on a balance of probabilities that there is a true “system of access” for the responsive Operator’s Manual.

The distinction is important: a company’s willingness to provide a particular record in response to an inquiry is not necessarily the same as operating an established system through which that record is available to the public generally.

What Does This Mean for Ontario’s Public Institutions?

Institutions should not rule out section 22(a) of FIPPA or section 15(a) of MFIPPA simply because the relevant “alternative system of access” is provided by a private company.

However, before relying on the exemption, institutions should confirm that the private company has actually established a regularized system of public access.

In particular, institutions should consider whether the requested records are genuinely available to any member of the public, whether the company has an established pricing structure (or offers the record(s) for free), and whether the cost of obtaining the records is reasonable in the circumstances or prohibative.

And remember, if a third party objects to disclosure (such as the private distributor itself, which may also have been the institution’s original source of the record), institutions should separately consider whether the mandatory third-party information exemption under section 17(1) of FIPPA or section 10(1) of MFIPPA applies.

Key Takeaway

The “Publicly Available Information” exemption under section 22(a) of FIPPA and section 15(a) of MFIPPA is broader than it might first appear.

An institution can potentially rely on an alternative system of public access operated by a private company, provided that the requested records are genuinely available to the public through an established, regularized system of access.

The important question is not who operates the alternative access system, but whether that system satisfies the requirements established by the legislation and the IPCO

For additional guidance, see the IPCO’s Interpretation Bulletin: Information Available to the Public.

Upcoming FOI Assist Seminar:

Privacy Impact Assessments — A Practical Introduction

Join us on Tuesday, November 24, 2026, at 10:00 a.m. Eastern for the next free session in the FOI Assist Seminar Series!

Seminar #6: Privacy Impact Assessments — A Practical Introduction will cover Ontario’s new legislative requirements for Privacy Impact Assessments (PIAs), including the requirements coming into effect for municipal institutions on January 1, 2027. We’ll also explore the IPCO’s latest guidance and practical approaches to preparing PIAs.

Attendance is free, but advance registration is required.

Learn more about Seminar #6 and register here.