Report 26 - Access to Information Review Task Force

ACCESS TO INFORMATION ACT -
REVIEW OF ADMINISTRATIVE LIMITS

Published: June 2002

Robert Jelking

Principles and obligations of Freedom of information

Everything that is said about Access to Information laws needs to be tied closely to the purpose of the legislation because it is a long standing principle that the legislation cannot be read in such a way as to frustrate its fundamental intent.
There are at least three public interests that need to be balanced in administering this legislation:

a) Ensuring public access to government information,

b) Maintaining the effectiveness of government and its agencies, and

c) Protecting from exposure the information which other parties want to keep private.

The purpose of FOI legislation is to make more government information available to the public than the government institution would otherwise be inclined to reveal. Thus, the public is given a right of access and government institutions may refuse only for certain limited and specific reasons. Under the present legislation, the public is protected from unreasonable demands on the resources of government institutions by limiting the right of access to existing government records, and by providing that requesters pay for some of the expense in searching for and preparing the information for disclosure.

When making a request for access, a requester is expected to explain clearly the nature of the information being sought, and provide sufficient detail so that an experienced employee can find it with a reasonable effort. A requester is not expected to know exactly where and in what kind of records the information is kept, nor is the institution expected to search indefinitely. To facilitate this search, government institutions are required to prepare and make available to the public a description of their records and the information they contain.

Government institutions are not permitted to hide behind poor record keeping. In Canada, government institutions are required to conform to an information management policy. Some other jurisdictions require that before a request can be refused, a requester must first be offered assistance in making a request, which meets the requirement of the legislation. Other assistance which may need to be offered includes: identifying the agency to which the request should be made, advising as to how a request may be modified so as to remove the grounds for extending time limits or refusing access; and reformulating the request so as to reduce the fees which may be charged.

NATURE OF LIMITS

This section briefly describes the generic nature of limits that can be imposed when there are justifiable grounds. The limits are listed in order of increasing severity in terms of their impact upon limiting the rights conferred by the Act.

It may be useful to remember that the right of access in FOI legislation is granted only to records that exist; there is no obligation to create new records or create new information. However, the increasing availability of records in computer readable form makes these limits somewhat less clear than they would be in the case of hard copy records.

There is also an obligation that the requester specifies the nature of the information sought. This is accompanied with an obligation upon the institution to provide assistance to the requester. Thus there is no request to grant or refuse if it cannot be established what information the requester is seeking.

There are several other administrative provisions which set parameters for the request itself. Most jurisdictions do not require institutions to respond to requests for information that is easily available through other means (often referring to information that is published, or about to be published). Most jurisdictions (except Canada) allow institutions to either aggregate or split requests from the same requester for purposes of applying fees, time extensions or other limits. In addition, most jurisdictions do not require institutions to create records in order to respond to a request for access, or to convert existing records into formats that the institution would not normally use (with the exception of alternate formats for disabled requesters).

There are basically only three escalating remedies to be considered. The first remedy is to take more time to comply with the request subject only to the exemptions to the right of access. Second, if extending the time limits alone does not satisfy the needs of the institution and the requester, some cost recovery can be negotiated with the requester to pay for the additional effort required. For this to work, an effective revenue regime needs to be in place. Finally, only when all the first two avenues have failed to create a satisfactory solution should the agency consider refusing to process a request.

1. Extension of time limits

The extension of time limits is possibly the administrative practice that least intrudes upon the right of access. It acknowledges that a request may be granted, at least in part, but that the institution will need more time to assemble the records, review them, and undertake the necessary consultations. In theory, there may be no limits to the length of time that may be taken to process a request. As a practical matter, the particulars of the extension are subject to review and would therefore have to appear reasonable for the response by the institution not to be considered a deemed refusal. As a further practical matter, a requester may be willing to accept a reasonable delay in obtaining the information requested and even paying the full cost of processing the request rather than having access denied.

2. Fees

The fee structure that applies to requests for access can do much to strike an appropriate balance between the public interest in ensuring access and the public interest in maintaining the effective working of government institutions. In Canada, the fee structure provided by law is discretionary and consists of an application fee, a reproduction fee, and an hourly rate for time spent in searching for the record and for preparing it for disclosure. No fee can be charged for the time spent in determining what portion of the record will be disclosed. The fees may also be waived. In Canada the existing fee mechanism results in the collection of fees amounting to approximately 1% of the cost of processing requests, and it provides little protection against unreasonable diversion of public resources as a result of requests for large numbers of records.

There is a considerable variation in the manner in which other jurisdictions have dealt with this area. Both Australia and New Zealand provide for the refusal of requests if granting the request would result in the substantial and unreasonable interference in the functioning of the institution. In the UK, the legislation provides that an agency is not required to comply with a request if the costs of doing so would exceed the “appropriate limit”, a separate fee structure can be established for requests that exceed this limit.

3. Deferral or Refusal

A deferral is a temporary refusal and provides an institution with time to make a disclosure in another forum prior to releasing the document to the requester. An example would be a report that is to be tabled before Parliament, which if first released to the requester may constitute contempt of Parliament.

The refusal of a request is intended to be a mechanism of last resort. The administrative grounds for refusal under Canada’s legislation are limited to such things as: published material, archival material, or material available for sale. In other legislation, there is explicit provision for refusal on the grounds that the functioning of the institution would be substantially impaired. The authority to refuse is however accompanied with an obligation to assist requesters in reformulating their request in such a way as to remove the grounds for refusal.

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