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CED, an Overview of the Law — Privacy and Freedom of Information

Federal and provincial legislation provides individuals with a right of access to information in records under the control of government institutions. This post examines the varying provincial procedures a person seeking access to a record must follow.

Privacy and Freedom of Information



By: Colonel Me Michel W. Drapeau, OMM, CD, LL.L., LL.B., Adjunct Professor, Faculty of Law, University of Ottawa, of the Ontario Bar and Me Marc-Aurèle Racicot, B.Sc., LL.B., LL.M., Director Research and External Relations, with the Office of the Information Commissioner of Canada, of the Quebec Bar.



III: Freedom of Information



Click HERE to access the CED and the Canadian Abridgment titles for this excerpt on WestlawNext Canada



III.3: Access Procedure



See Canadian Abridgment: PRI.IV.1.d Privacy and freedom of information | Freedom of information | Federal legislation | Practice and procedure; PRI.IV.1.e Privacy and freedom of information | Freedom of information | Federal legislation | Miscellaneous; PRI.IV.2.d Privacy and freedom of information | Freedom of information | Provincial legislation | Practice and procedure; PRI.IV.2.e Privacy and freedom of information | Freedom of information | Provincial legislation | Miscellaneous




A person seeking access to a record must make a request in writing to the institution that the person believes has custody or control of the record, providing sufficient details to reasonably identify the record sought, and must pay the appropriate fee at the time the request is made.1 



In Quebec, an applicant must make his or her request to the person in charge of a public body. If the written request is addressed to the person exercising the highest authority within the public body, he or she must transmit it with diligence to the person in charge.2 The person in charge must inform an applicant who makes an oral request that he or she may make a written request and that only a decision on a written request may be reviewed under the Act.3 The person in charge must also give the person making a written request notice of the date his or her request was received.4



In the Yukon, an applicant must make their request to the records manager. A request for access may be made orally or in writing verified by the signature or mark of the applicant and must provide enough detail to identify the record. If the request is made orally, the person who receives it must make a written record of the request and the request is not complete and does not have to be dealt with until its written form is verified by the signature or mark of the applicant.5



Although the request is made to the records manager, and the response is communicated to the applicant by the records manager, the public body that has the control or custody of the record has the power to decide, in compliance with the Act, what the response is to be and which of its officers or employees is to deal with the request and decide on the response.6



The requester need not use the precise terminology used by the government institution to request the information. As long as the language used by the requester identifies the information requested with sufficient specificity that the record can be identified by the government institution, and absent any other exemptions to the contrary, it must be provided.7 At the federal level, institutions are now obliged to provide advice and assistance, so far as it is reasonable to do so, to people who have made or who propose to make requests for access to information. The imposition of such a statutory duty places the onus on institutions to assist citizens in the exercise of their right of access to information under the control of the federal government.8



In Alberta, British Columbia, the Northwest Territories, Nova Scotia, Prince Edward Island and the Yukon, the applicant may ask for a copy of the record or ask to examine the record,9 either of which option is available to the applicant in other jurisdictions without the necessity of making a selection at the time of application. Where a request does not include sufficient detail to enable the institution to identify the record sought, the head may extend the time limit within which the institution must respond beyond the 30 day requirement.10 In Alberta, a request may continue in effect for a period of up to two years, when so indicated by the applicant.11



The head of a federal, Manitoba, Newfoundland and Labrador, Northwest Territories, Nova Scotia, or Prince Edward Island government institution has an affirmative duty to assist an applicant and to respond without delay, openly, accurately and completely.12 



In New Brunswick, the request for access to a record shall specify the record requested or where the record in which the relevant information may be contained is not known to the applicant, provide enough particularity as to time, place and event to enable a person familiar with the subject matter to identify the relevant records.13 The head of a public body shall make every reasonable effort to assist an applicant, without delay, fully and in an open and accurate manner.14 The head of a public body may extend the time for responding to a request for up to an additional 30 days if the applicant does not give enough detail to enable the public body to identify a requested record.15



In Ontario, if the request does not sufficiently describe the record being sought, the institution must notify the applicant and offer assistance in reformulating the request.16 



In Quebec, if the request is not sufficiently precise or if a person requires it, the person in charge must assist in identifying the document likely to contain the information sought.17 



In Saskatchewan, a request for access is deemed to be made when the institution receives the request.18 Where the head is unable to identify the record requested, he or she must invite the applicant to clarify the request, in which case the application is deemed to be made when the record is identified.19



In the Yukon, the public body that has the record in its custody or control has an affirmative duty to assist the records manager to respond to each applicant openly, accurately, and completely.20 



A provision is made in the legislation for transferring a request for a record to another institution in prescribed circumstances. In Ontario, the head must determine whether the record requested is in the custody or control of another institution and, if so, forward the request to that institution within 15 days of receiving the request, and notify the applicant thereof.21 Where a federal institution, or one in Ontario or Saskatchewan, receives a request and the head considers that another institution has a greater interest in the record requested, the head may transfer the request to that institution within 15 days of receiving the request. Written notice of the transfer of the request must be given to the applicant.22 An institution has a "greater interest" in a record if the record was originally produced by or for that institution, or the institution was the first to receive the record or a copy thereof.23



In Alberta, British Columbia, Manitoba, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, and Prince Edward Island, the head may transfer a request for access to a record to another public body within a prescribed number of days if the record was produced by or for the other public body, the other public body was the first to obtain the record, or the record is under the control of the other public body.24 The applicant must be notified of the transfer.25



In Quebec, the person in charge must, within 20 days from the date the request was received, transfer records that in his or her opinion ought to be transferred to another public body. The person in charge must indicate to the applicant the competent body and the name of the person in charge of access to documents in that body.26 



In the Yukon, the records manager must pass the request on to the public body which has the control or custody of the record, and the public body must respond to the records manager soon enough to allow the records manager to respond to the request within the 30 day time limit.27 The public body must provide information and comments to enable the records manager to give, on behalf of the public body, a response that complies with the Act.28



Under the federal and Ontario legislation, when a request for a record is forwarded or transferred, the request is deemed to have been made to the new institution as of the date the request was received by the original institution.29 In Saskatchewan, it is deemed to have been made on the day of the transfer.30 In Alberta, British Columbia, Manitoba, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, and Prince Edward Island, the head of the public body to which a request is transferred has 30 days to respond from the date the new institution receives the transferred request unless that time is extended.31



The head of a federal, Nova Scotia, Ontario or Saskatchewan institution that receives an original, forwarded, or transferred request for a record must give written notice to the applicant within 30 days as to whether or not the record or a part of the record will be given.32 In Alberta, British Columbia, Manitoba, Newfoundland and Labrador, and Prince Edward Island, the head must make every reasonable effort to respond to a request for access within 30 days, unless the request has been transferred or extended.33 In Quebec, the person in charge must grant access, or access with reasonable accommodation if the applicant is a handicapped person, to the requested document, promptly and not later than 20 days after the request was received. The person in charge must also inform the applicant of special conditions, if any, to which access is subject, that the agency is not in possession of the requested document or that full or partial access to the document cannot be granted to him or her, that the existence of the requested document cannot be confirmed, or that the document concerned is a document to which the Act does not apply.34 In the Yukon, the records manager must make every reasonable effort to respond without delay and must respond not later than 30 days after a request is received unless the time limit is extended.35



In New Brunswick, within 10 days after a public body receives a request for access to a record, the head of the public body may transfer the request to another public body if the record is in the custody of or under the control of the other public body.36 If a request is transferred, the head of the public body who transferred the request shall notify the applicant of the transfer in writing as soon as possible.37



A head may extend the time limit, not to exceed an additional 30 days in most jurisdictions, in which the institution must reply to the request for a reasonable period of time where the request is for a large number of records or requires the institution to search through a large number of records and meeting the statutory time limit would unreasonably interfere with the operations of the institution.38 A head may also extend the time limit when the circumstances of the request require the institution to consult with a person outside the institution that cannot reasonably be completed within the original time limit.39 In Nova Scotia, a head may also extend a time limit when the applicant does not give enough detail to enable the public body to identify a requested record.40 In Prince Edward Island, a head may, with the Commissioner's permission, extend the time for responding to a request if multiple concurrent requests have been made by the same applicant or two or more applicants who work for the same organization.41 In Quebec, if the request cannot be processed within the time limit without impeding the normal course of operations of the public body, the person in charge may, before the expiry of the time, extend it by not over ten days. He or she must then give notice thereof by mail to the applicant within the time limit.42 When a head extends the time limit, he or she must notify the applicant of the length of the extension, the reason for the extension, and, in most jurisdictions, that the applicant may ask the commissioner or ombudsman to review the extension.43 Under the federal statute, a head who extends the time limit for a period longer than 30 days must notify the Information Commissioner of the extension at the same time the head notifies the applicant of the extension.44



The head of an institution is not necessarily bound by an initial decision to disclose requested records. If, upon further review, the institution decides that the requested records fall within one of the exemptions, it may refuse to disclose even though it has already notified the requester of its original decision to grant the application.45 



When the head of an institution refuses to disclose records on the grounds that the request is frivolous or vexatious, the head must state in the notice to the applicant the grounds for refusing the request, the reasons he or she has determined that the request is frivolous or vexatious, and that the applicant may appeal the decision of the head to the commissioner.46 



In British Columbia, government institutions have a limited power to refuse repetitive requests for information. The courts have ruled that only exceptional circumstances justify an institution's refusal to disclose all future requests from an individual for personal information about himself or herself.47 



In Manitoba and Newfoundland and Labrador, the head of an institution may refuse a request that is repetitive or incomprehensible, or constitutes information that has already been provided or is publicly available.48 



In Nova Scotia, the head may refuse to disclose to an applicant information that is published and available for purchase by the public or is to be published or released to the public within 30 days after the applicant's request is received.49 



In Quebec, the Commission may authorize a public body to disregard applications that are obviously improper because of their number or their repetitious or systematic nature, an application whose processing could seriously interfere with the body's activities, or applications that are not consistent with the object of the Act.50 The Commission may refuse or cease to examine a matter if it has reasonable cause to believe that the application is frivolous or made in bad faith or that its intervention would clearly serve no purpose.51



When an institution receives a request for access to a record that contains the trade secrets of a third party, that contains information affecting the interests of a person other than the applicant, or that may constitute an unjustified invasion of personal privacy, the head must notify the person to whom the information relates within a certain period of time of receiving the request, or within the time of the extension, whichever is applicable.52 The notice must state that the head intends to disclose a record or a part of a record that may affect the interests of the person, a description of the contents of the record that relate to the person, and that the person has the opportunity, within 20 days of the date of the notice, to make written representations as to why the record or a part of it should not be disclosed.53 The federal, Manitoba and Saskatchewan Acts allow for waiver of such third party notice.54



In Quebec, if the person in charge does not succeed in notifying a third person by mail after taking reasonable steps to do so, the third person may be notified in another manner, such as by public notice in a newspaper in the place where the last known address of the third person is located. If there is more than one third person and more than one notice is required, all third persons are deemed to have been notified only once all the notices have been published.55 



When a person is notified that the head of an institution intends to disclose a record containing information affecting that person's interests, the head must also notify the applicant that the record may affect the interests of another person, that the other person has been notified and given the opportunity to make representations as to why the record should not be disclosed, and that the head will decide within 30 days whether or not to disclose the record.56 



In Alberta, where a head decides to refuse access to a record which contains personal information or information affecting the interests of a third party, the head may give notice to the third party in the same manner as notice would have been given had the head intended to disclose the record.57 



In Ontario, following notice to the third party affected, where a head decides to disclose a record containing information relating to that person, the head must give the applicant access to the record within 30 days unless the person to whom the information relates appeals the decision of the head to the commissioner.58 The head must give notice to both the applicant and the person to whom the information relates of this stage of the procedure.59



In Quebec, the person in charge must give notice of his or her decision by mail to the applicant within 15 days of presentation of the observations, or of expiry of the time limit.60 



Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Prince Edward Island, Saskatchewan, and the Yukon also place a 30 day time limit on the head to reach a decision in situations where third party notice is required, but in Alberta, British Columbia, Manitoba, Prince Edward Island and the Yukon, no decision may be made before 21 days after the third party notice has been given, or the day a response is received from the third party, and in Nova Scotia, before 15 days or the day a response is received from the third party.61 In the Northwest Territories, a 90 day limit is placed on the head to reach a decision in situations where third party notice is required, and no such decision may be made before 61 days after the third party notice has been given or the day the response is received from the third party.62 A notice that the head has decided to give access must state that access will be given unless the third party asks for a review.63 Notice of a decision not to give access must advise the applicant of the right to ask for a review.64



In other cases, when a head of an institution decides to refuse access to a record, the head must notify the applicant of that decision.65 Where there is no such record, the notice must state that fact, and, in most jurisdictions, that the applicant may appeal to the commissioner or the ombudsman the question whether such a record exists.66 Where the record exists, the notice must state the specific provision under which access is refused, the reason the provision applies to the record, the name and position of the person responsible for making that decision, and that the applicant may complain or appeal the decision to the commissioner or the ombudsman.67



In New Brunswick, in response to a request for access, if access to the record or part of the record is refused, the head of the public body shall inform the applicant, (i) in the case of a record that does not exist or cannot be located, that the record does not exist or cannot be located, (ii) in the case of a record that exists and can be located, of the reasons for the refusal and the specific provision of the Act on which the refusal is based, (iii) of the title and business telephone number of an officer or employee of the public body who can answer the applicant's questions about the refusal, and (iv) that the applicant has the right to file a complaint with the Commissioner about the refusal or to refer the matter to a judge of the Court of Queen's Bench of New Brunswick for review.68 



A federal government institution is bound by the reasons it provides for its refusal to grant an access request.69 The only circumstance that might justify the government's substitution of new grounds for non-disclosure would be a mandatory exemption that had not been raised in the government's original notice to the requester.70



A head that fails to respond to a request for access to a record is deemed to have given notice of refusal to disclose the record on the last day of the period during which notice should have been given.71 



An applicant who has been granted access to a record will be given a copy of the record, unless the size of the record would make it impracticable to do so, in which case the applicant will be given the opportunity to examine the record and make a copy of that portion of the record which the applicant desires, unless the portion of the record is so great that it would be impracticable to do so.72 Under the federal statute, an applicant with sensory disabilities must be accommodated with respect to the form in which access to the record is granted.73 In addition, the applicant is entitled to the record in the official language of the applicant's choice.74



Once an applicant has received records from a government institution pursuant to an access request, the records may be put to any use the applicant desires, subject to copyright legislation and the limitations of the general law. In some jurisdictions, a requester who discloses without malicious intent records from a government institution would be able to claim a qualified privilege in a defamation suit since the records are part of the public record.75 



In Saskatchewan, the head of a government institution must notify the applicant within 30 days of receiving a request for information.76 If the requested record has been published, the head must direct the applicant to the publication in which it may be located.77 The head may also respond by refusing to confirm or deny the existence of the record.78



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