Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

Chapter 5 –The Access Process in the Act

Sections 6 to 12 of the Access to Information Act set the framework that institutions must adhere to in processing requests. These sections endeavour to strike a balance between the needs of requesters and the capacity of institutions to comply while delivering on their mandate. They regulate the time limits for responding to requests, the framework for fees, and the requirements for notices to the requester.

Requests

Format of Release

Government institutions may hold the same records in a variety of formats (e.g. paper, electronic, microfilm). The Act and the Regulations do not specify who makes the decision as to which format of a record to provide to the requester; so the decision rests with the institution. We believe that requesters should be able to choose the format for the copy they receive, if the record can be disclosed, and already exists in that format. This is subject to conditions described in the Regulations (which deal with circumstances where copies of records cannot be provided; for example, if the record is in a form which cannot be copied without damaging it).

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Clarifying and Determining the Scope of Requests

Requesters sometimes require assistance in expressing their requests in terms that the government institution can understand. It is therefore often up to the access to information office to help requesters find the terms to describe the records they are seeking. Some requesters contact institutions beforehand to discuss how to phrase their requests. Many institutions contact requesters to discuss the scope of their requests as a matter of course. They find this helps to focus on what the requester really wants, and to reduce response times. Requesters have consistently identified this as a very helpful practice.

While recognizing that the final decision on the request’s scope always rests with the requester, we believe that, as a best practice, Access to Information Coordinators and their staff should be encouraged to contact requesters to discuss their requests in almost every case. The exception would be the rare cases where the scope of the request is perfectly clear, and cannot be misinterpreted. In many cases, it is useful to have the requester speak directly to someone in the program area, who can explain what information they have, how it is organized, and what is already available informally. We also believe that access officers should keep in touch with requesters to provide updates on the processing of their requests. For example, if it appears that a lot of time will be needed to locate very few disclosable records, the officer should let the requester know as soon as possible. Requesters should then have the opportunity to amend their requests in order to reduce the fees they could be required to pay, or the length of time that will be needed to process the request.

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Offer to put the requester in direct contact with the program staff, especially where the subject matter is technical.
Nothing will corrode respect for the law among public servants more quickly than the sense that there is no protection against the abuse of FOI rights. Alasdair Roberts Notes for Address to Media Association of Jamaica Seminar, February 2000

Given that government institutions have limited human and financial resources, legislation in all of the jurisdictions we examined has provisions for balancing the demand for access to information and the capacity of institutions to respond. These provisions can include fee structures, time limit extensions, requirements for defining the subject of a request, and authority to refuse to process requests based on their nature or size. The Access to Information Act contains fewer administrative limits than most other similar legislation.

Defining a Request

Institutions sometimes receive broad, unfocused requests involving large numbers of records. For example, there have been requests for “every record located in the office of Ms. X” and “every e-mail message in the inbox of Mr. Y.” Such requests, which are not precise as to the information of interest to the requester, by their nature require the processing of a large proportion of records which, in the end, may not be of interest. We believe that these requests are not in keeping with the Act’s intent, or with the effective use of taxpayers’ money. To prevent this problem, the Act should be amended to clarify that requests must be reasonably specific; they must refer to a specific subject matter, or to specific records. However this is done, the amendment must also ensure that this requirement does not impede legitimate requests.

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Frivolous, Vexatious or Abusive Requests

After discussing this issue extensively with Coordinators and requesters, we have concluded that in Canada, as in the other jurisdictions we examined, there exist requests that are frivolous, vexatious or abusive, but that the number of such requests is very small. Nonetheless, these requests tend to have a negative impact on the reputation of access within the public service. As well, processing them represents a waste of resources that could be better spent responding to legitimate requests. Several of the jurisdictions that we examined, including Alberta, Ontario, British Columbia, Ireland, New Zealand and the United Kingdom, authorize government institutions to refuse to process requests that are abusive, frivolous and/or vexatious.¹

We have found that in other jurisdictions which have such provisions, the courts have set the test for applying them very high. In his 2000-01 Annual Report, the Information Commissioner recommended that government institutions be given the power to refuse to respond to frivolous or vexatious requests. His recommendation included a right to complain to the Commissioner, who could issue a binding recommendation. In Alberta and B.C., institutions may seek the authorization of the Commissioner to refuse to process a frivolous or vexatious request. Since refusal to process a request is a drastic measure, we believe that this would be an appropriate approach. This mechanism would give the needed assurance that the provision would not be used inappropriately.

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Time Limits

Section 7 of the Act requires that, within 30 days of receiving a request, a

government institution inform the requester whether access to the requested record is to be given and, if so, to provide it. Section 9 allows the 30-day period to be extended “for a reasonable period of time” in three situations:

• the request is for a large number of records, or requires a search through a large number of records, and meeting the original time limit would unreasonably interfere with the operations of the government institution;
  
  
• consultations are required which cannot be completed within the original time limit; or
  
  
• notice is being given to third parties.

The Commissioner must be notified of any extension of more than 30 days. If a record is not provided within the legislated time limits (i.e. the original 30 days or the extended period) the request is deemed under the Act to have been refused.

Not responding within statutory time limits has been a serious problem in Canada, as in many other jurisdictions. At the federal level in this country, delays have accounted for a very large share of complaints to the Information Commissioner (49 per cent in 1999-2000; 42 per cent in 2000-2001, 28.8 per cent in 2001-2002).

Requesters waiting for information believe that the time limits are too long. Officials responding to requests believe that the current time limits do not reflect the reality of complex requests, the need for multiple consultations and third party notices, and heavy workloads.

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Thirty-Day Time Limit²

Access Coordinators and the Information Commissioner have agreed that requests have become more complex, often requiring broader searches and more consultation.

After examining the time limits in other jurisdictions, we believe that the current 30-day period is about right.

The suggestion has been made, however, that the 30-day limit should be expressed in terms of working, rather than calendar days. As Access Coordinators have pointed out, expressing the time limit in calendar days means that the amount of time available to an institution for processing a request depends on when it is made (with December being the worst-case scenario). We have noted that the limits in both New Zealand and the United States are expressed in terms of working days. We agree that it makes more sense to express the time limit in working days.

The question then becomes, how many working days should be allowed? We are reluctant to either reduce or increase the time available to process requests, which leaves a limit of 21 working days – the average equivalent of 30 calendar days. This would ensure that institutions have exactly the same amount of time for processing every request.

The other time limits for processing requests – for transferring a request, the extension of time limits, the time period for exemption of information that is about to be published, the time limits for notifying a third party and for the third party to make representations to the institution –should also be adjusted to reflect equivalent working days.

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Extensions

As noted above, the Act currently permits a government institution to extend a response beyond 30 days. While there is no statutory limit on the extension, it must be “for a reasonable period, having regard to the circumstances”. The Information Commissioner must be notified if the extension is for more than 30 days.

The Act provides that the time limit for responding can be extended if the number of records is large and meeting the time-frame would interfere with the operations of the institution. Experience has shown that there are reasons other than size that can make the processing of a request within

Whatever the motive behind a request, FOI should never be allowed to divert an agency from its primary functions. This is essential not simply for good government, but also for the good name of FOI. Robert Hazell, Freedom of Information in Australia, Canada and New Zealand, September 1987.

30 days interfere with the operations of the institution. For example, processing may require input by specialists, of whom there are very few, or officers in the program area responsible for the relevant records may currently be involved in a crisis. The Information Commissioner has expressed the view that the permissible grounds for an extension should be adjusted to reflect these types of circumstances.

After discussion with the Office of the Information Commissioner, we believe that it would greatly simplify the administration of the extension provision if the permissible reason for extension contained in Paragraph 9(1)(a) was simply stated as unreasonable interference with the operations of the institution.

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	Releasing records to the requester as they become available.

Release of Processed Records

Some government institutions are not releasing any information to a requester before the deadline for responding, or until the full request is completely processed. Others are releasing batches of information to a requester as it is processed. We believe this is the better course. If the requester wishes to receive some information as soon as it is ready for release, there is usually no reason why it should not be provided.

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¹In Alberta, the Commissioner may authorize an institution to disregard requests that would interfere unreasonably with operations. In Australia, institutions may refuse access if the work involved in processing the request would “substantially and unreasonably divert the resources of the Agency from its other operations”. In Ireland, the head may refuse access where the number, or nature of records requested, would cause a substantial and unreasonable interference with, or disruption of, other work of the public body. In New Zealand, a request may be refused if the information cannot be made available without substantial collation or research.

²Legislation in Alberta, British Columbia, Manitoba, Ontario and Australia provides that a response is to be given within 30 days (with varying provisions relating to extensions). In Ireland, the time limit is four weeks. In Quebec, it is 10 days (with another 10 days possible), and in New Zealand and the United States it is 20 working days.