Presentation on theme: "1 Processing Access Requests Workshop “In the Door, Out the Door” Note: These slides are from a workshop first delivered by the Access and Privacy Branch,"— Presentation transcript:
1 Processing Access Requests Workshop “In the Door, Out the Door” Note: These slides are from a workshop first delivered by the Access and Privacy Branch, Ministry of Justice and Attorney General of Saskatchewan in 2006 and 2007. The workshop is for employees responsible for processing access requests received pursuant to FOIP or LAFOIP. These slides are for information purposes only. Please refer to the legislation for purposes of interpretation.
2 Please read first These slides are taken from an Access and Privacy Branch workshop targeted at access officials in government institutions and local authorities in Saskatchewan subject to The Freedom of Information and Protection of Privacy Act and The Local Authority Freedom of Information and Protection of Privacy Act. The workshop is designed to assist officials responsible for processing access requests received under the Acts. The information in these slides is for training purposes only and is often shortened to headers, etc. It should not be relied upon for legal interpretation. Please consult appropriate legislation and, as required, legal counsel for full interpretations of the Act.
3 Agenda Part I – Background Information Part II – First Steps after Receiving An Access Request Workshop Exercise One Part III – Processing the Request Workshop Exercise Two Part IV – Records Review and Exemptions Workshop Exercise Three Part V – Finalizing the Request Part VI – Closing and Questions
4 Objectives of workshop 1. Provide an overview of processing an access request from date of receipt to finalizing the request. 2. Three hands-on exercises. 3. Share experiences & answer questions.
5 Terms used in presentation… Referred to in presentation as.. The Freedom of Information and Protection of Privacy Act and Regulations: - the FOIP Act - the FOIP Regulations. The Local Authority Freedom of Information and Protection of Privacy Act and Regulations: - the LAFOIP Act - - the LAFOIP Regulations An Access to Information request - - an access request - - freedom of information request - - FOI request Provincial Government Institutions and Local Authorities - Public Bodies
6 PART I: Background Right of Access What is a record? Formal Requests Duty to Assist
7 Justice LaForest, Supreme Court of Canada “The overarching purpose of access to information legislation—is to facilitate democracy. It does so in two related ways. It helps to ensure first that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.” Justice LaForest  2 S.C.R. 403 Dagg v. Canada (Minister of Finance)
8 FOIP: Rights of Access FOIP and LAFOIP provide every person a right of access to records in the possession or under the control of a provincial government institution or a local authority, subject to certain exemptions. See sections 5 of FOIP and 5 of LAFOIP
9 FOIP: Definition of Record Section 2(1)(i) of FOIP and 2(j) of LAFOIP define a record as: “…a record of information in any form and includes information that is written, photographed, recorded or stored in any manner, but does not include computer programs or other mechanisms that produce records.”
10 Examples of Types of Records documents letters handwritten notes papers draft documents e-mails sticky notes journal books calendars vouchers maps (non- published) drawings photographs
11 FOIP: Duty to Assist The Office of the Information and Privacy Commissioner (OIPC) has concluded that public bodies have a duty to assist all applicants when they apply for access to records. This can include: working with the applicant to identify what records they actually would like to access; offering options when an access request will result in a large estimate of costs; and not defining access requests too narrowly. See OIPC Report Numbers: F-2004-003, F-2004-005
12 FOIP/LAFOIP is Not Always Necessary Encourage informal disclosure when appropriate. FOIP/LAFOIP are formal processes – informal may be more appropriate.
13 Recognizing a formal request There are two types of formal requests: Access to Information Request form Written requests (not on the formal Access to Information Request form)
14 Recognizing a formal request - Access to Information Request Form Form “A” in the FOIP Regulations and Form “A” LAFOIP Regulations Application form asks for: contact information of applicant; public body request is directed to; name of the record; and details of the information being requested. Application Fees: No application fee under FOIP $20 application fee under LAFOIP See next two slides for prescribed forms
17 Recognizing a Formal Request - Written Requests (Not on Formal Application Form) If it’s apparent the applicant is intending to file a formal access request, you should accept it as a formal access request. Language to look for: freedom of information request access to information request request under The Freedom of Information and Protection of Privacy Act If written request meets “Form A” requirements, accept the request as a formal request. Request should include: contact information of applicant; government institution request is directed to; name of the record; and details of the information being requested. The Office of the Information and Privacy Commissioner (OIPC) will expect that these types of requests are accepted and fall within our duty to assist the applicant.
18 You only have 30 Calendar Days The clock starts ticking the day after it’s received in your government institution – all employees should be aware of this. See section 7(2) of FOIP and LAFOIP, and section 24(3) of The Interpretation Act, 1995 If the due date falls on a weekend or holiday, it moves to the next working day. See section 24(1) of The Interpretations Act, 1995 See appendices: Help With FOIP!! Access Request Checklist FOIP / LAFOIP Process (Flow Chart)
19 What’s been discussed so far… Individuals have the right to access the records of public bodies. What is a record and examples of a record. We have a duty to assist applicants. An access request is not always necessary. How to recognize a formal access request. There are important timeframes that must be followed.
20 PART II: First Steps after Receiving an Access Request Log the Request Set up file Heads up Search
21 First Steps You’ve got a request – where to start? Log the request. Set up a file. Provide “heads up”. The search should begin for the responsive records.
22 First Steps: Logging the Request & Set up a File Access Requests should be logged and have a file. The file should contain all correspondence relevant to the Access Request. See Appendix: Help with FOIP!!! Access to Information Requests: Logging and File Set Up Access Request File JU01/07G
23 First Steps: Providing a “Heads Up” A “heads up” e-mail may have the following audience. Your process may routinely include: Deputy Minster’s Office, President’s Office Access Officer Communications Division Head responsible for information being requested Branch Head or Program Manager responsible for the information being requested In addition, the Access and Privacy Branch receives the “Pink” copy (or a photocopy) of the access request. Not applicable to Local Authorities.
24 First Steps: Heads Up - Things to remember The applicant’s name is usually personal information “Heads up” with the applicant’s name should be on a need-to-know basis: Share the applicant’s name only as needed to process the request (e.g. – you will need to share the name with the program staff who need to find personal information requested by the applicant). Protect the applicant’s identity where appropriate. Retain documentation of how the “heads up” was communicated (e.g. – copy of the request, an e-mail outlining the details of the requested information). Heads up should be provided when the request is received.
25 First Steps: Beginning the Search Identify the area(s) of your government institution most familiar with the records being requested. Discuss the request with branch/program area.
26 First Steps: Access Requests are Serious You may need to remind everyone of the serious nature of these requests. Public bodies have an obligation in law to respond to the applicant. Ask questions along the way to ensure appropriate steps are being taken: Are fee estimates accurate? Were all responsive records identified? Did you search everywhere for responsive records? Is there anything you can’t find? Are the search efforts documented in detail? Deadlines are important.
27 Day One: What should have been accomplished? The request should be logged. The file should be set up. “Heads up” should be provided. The search should begin for responsive records.
28 Workshop Exercise One Receiving an access request: assigning a file number; logging the request; and determining what positions should be provided with a heads up. See handouts.
30 29 Days Left – no need to rush, right? WRONG! Did you know that in 30 calendar days there are approximately 20 work days. Then you need to factor in EDO’s, SDO’s, STAT holidays, vacation. YIKES – Better get to it!
31 Next Steps: Further Discussions Discuss access request with area responsible for responsive records. Are the details of the request clear or will clarification be necessary? Will fees be necessary to process the request? For example: there will be a lot of work involved; there will be a large search to locate the responsive records; and/or there will be costs to reproduce the responsive records (e.g. photocopying, copies of photographs). These questions will need to be answered right away.
32 Are the details of the request clear? “An applicant shall specify the subject matter of the record requested with sufficient particularity as to time, place and event to enable an individual familiar with the subject matter to identify the record.” See section 6(1)(b) of FOIP and 6(1)(b) of LAFOIP. If the records cannot be identified, clarification will be necessary.
33 When clarification is necessary “Where the head is unable to identify the record requested, the head shall advise the applicant, and shall invite the applicant to supply additional details that might lead to the identification of the record.” See sections 6(3) of FOIP and 6(3) of LAFOIP. When it is determined clarification is necessary ask yourself what additional details are required to help identify the record, then pick up the phone or write a clarification letter. Document phone call and follow up in writing. Sample clarification letter included in Model Letters package. The clock stops when you ask for additional details. “Where additional details are invited to be supplied pursuant to subsection (3), the application is deemed to be made when the record is identified.” See sections 6(4) of FOIP and 6(4) of LAFOIP.
34 Wait a second…these aren’t even our records! An application can be transferred within 15 days of receipt if it is determined another public body has a greater interest in the records being requested. LAFOIP provides for a transfer to another local authority or government institution; FOIP provides for a transfer to another government institution. See sections 11(1)(a) and (b) of FOIP and 11(1)(a) and (b) of LAFOIP. Greater interest in a record is determined if: the record was originally prepared in or for the public body; or the public body was the first to obtain the record or a copy of the record. See sections 11(2)(a) and (b) of FOIP and 11(2)(a) and (b) of LAFOIP Consider contacting the applicant prior to transferring the application. Sample transfer letter included in Model Letters package.
35 Identifying the record: Locating the responsive records Once details of the requested information is clear – locate the records. This may include: searching electronic records (e.g. - e-mails, databases); searching files (e.g. – central filing cabinets, files in offices); or searching offsite or secondary storage facilities (e.g. - Government Services Records Centre, storage rooms, boxes in basements).
36 You said “What’s a record?” A record includes anything received or produced by you in the course of your work. This includes: sticky notes e-mails draft documents handwritten notes black journals/meeting books etc, etc, etc…
37 There sure are a lot of records… Some activities involved in complying with the request may include: gathering records providing third party notification copying records severing records This is going to take a lot of time and money. You may need to consider: providing the applicant with an estimate of costs; and/or extending the response period for the application.
38 When fees are necessary to process the request Determine how big the request is. Ask those familiar with the requested information what it will take to comply with the request. Does the request involve a lot of records? Will a search be necessary? How many copies will there be? Decide early if the estimate of costs will be necessary. LAFOIP requires a $20.00 application fee. see section 5(1) of the Regulations.
39 Fees for access / waiver of fees Public bodies can charge fees for access. Sections 9 of the FOIP Act and 9 of the LAFOIP Act The fee schedule can be found in the regulations. Sections 6 of the FOIP Regs and section 5 of LAFOIP Regs Fees for access must be charged, but can be waived. See sections: 9(5) of the FOIP Act and 9 of the FOIP Regs 9(5) of the LAFOIP Act and 8 of the LAFOIP Regs
40 When fees are necessary - estimates If fees will exceed $50.00, a cost estimate is necessary and the total fees charged cannot exceed the initial estimate of costs. FOIP - sections 9(2) of the Act and 7(1) of the Regs. LAFOIP – sections 9(2) of the Act and 6(1) of the Regs. Consider providing the applicant with an estimate letter or heads up if the fees will be less than $50. A public body can require a deposit of up to 50% of the estimate FOIP - section 9(4) of the Act LAFOIP – section 9(4) The applicant pays the actual cost when the estimate is more than the actual cost FOIP - section 7(2) of the Regs. LAFOIP – section 6(2) of the Regs. Fees cannot be charged for full denials FOIP - section 8 of the Regs. LAFOIP – section 7 of the Regs.
41 Fee Estimates: Required Components Detailed explanation of the fees is important. The following components should be considered for a cost estimate letter: time required to search for records (perhaps break out paper and electronic); time to prepare records for disclosure; and other costs – including number of photocopies, cost of photographs, etc. Cost estimate letter should address any fee waiver requests (if not done already) See OIPC Report No. F-2005-005, F-2007-001
42 Estimate of Costs Form This form is not prescribed in the regulations – administrative only Sample Estimate of Costs Letter and two estimate of costs forms are included in Model Letters package.
43 Estimate of Costs - The Clock Stops Response time is suspended when an estimate letter is sent. Response time resumes when the applicant notifies you that he/she wants to proceed with the request and pays any deposit required. See section 9(3) of the FOIP Act and 9(3) of LAFOIP.
44 This is going to take more than 30 days to complete… FOIP/LAFOIP allows for an extension of up to 30 additional days, in limited circumstances. To invoke a time extension, one of the following situations must apply: large number of records or search through large number of records and work would otherwise interfere with the operations of the public body Sections 12(1)(a)(i) of FOIP and 12(1)(a)(i) of LAFOIP there are a large number of requests and work would otherwise interfere with the operations of the public body Sections 12(1)(a)(ii) of FOIP and 12(1)(a)(ii) of LAFOIP consultations are necessary which cannot be completed within the original 30 days Sections 12(1)(b) of FOIP and 12(1)(b) of LAFOIP third party notice is required Sections 12(1)(c) of FOIP and 12(1)(c) of LAFOIP. See OIPC Report No. F-2006-003 and F-2006-005 Sample Extension of Time Letter included in Model Letters package.
45 What’s been done so far? Clarified request (if necessary). Found responsive records. Estimated/collected deposit (if necessary). Extended response time (if necessary). It’s time to: review all responsive records; and prepare notification letters.
46 Workshop Exercise Two Calculate an estimate of costs to process the access request. See handouts.
48 Records Review FOIP/LAFOIP are about providing access to records, but some information may be exempt from release. There are exemptions in the Act: mandatory; and discretionary. Line-by-line review of responsive records.
49 Two Main Types of Exemptions Mandatory Exemptions The “head” cannot disclose the information. The wording, “a head shall refuse access…” will be used. Discretionary Exemptions The “head” must decide if the information can be disclosed. The wording, “a head may refuse access…” will be used.
50 Mandatory Exemptions Note: Below are titles only. Please consult the Act for complete wording of each provision before attempting to apply these exemptions. Records from other governments (FOIP, s. 13; LAFOIP, s. 13) Cabinet Documents (FOIP, s. 16; not in LAFOIP) Third party information (notification to third party may be required) (FOIP, s. 19; LAFOIP, s. 18) Also consider protection for personal information about an identifiable individual (FOIP, s. 29; LAFOIP, s. 28; HIPA, ss. 27, 28, 29)
51 Discretionary Exemptions Note: Below are titles only. Please consult the Act for complete wording of each provision before attempting to apply these exemptions. Information received in confidence from a local authority (FOIP, s. 13(2); not in LAFOIP) Information injurious to intergovernmental relations or national defense (FOIP, s. 14; not in LAFOIP) Information regarding Law Enforcement and Investigations (FOIP, s. 15; LAFOIP, s. 15) Documents of a local authority (not in FOIP; LAFOIP, s. 15) Advice from Officials (FOIP, s. 17; LAFOIP, s. 16) Economic and other interests (FOIP, s. 18; LAFOIP, s. 17) Testing procedures, tests and audits (FOIP, s. 20; LAFOIP, s. 19) Danger to health or safety (FOIP, s. 21; LAFOIP, s. 20) Solicitor-client privilege (FOIP, s. 22; LAFOIP, s. 21) Also consider confidentiality provisions in other enactments (FOIP, s. 23; LAFOIP, s. 22)
52 Applying exemptions to an access request When denying access to records in part or in full – quote all applicable exemptions. If more than one exemption applies – apply it. Discretionary Exemptions: When conducting a review, the OIPC will only consider a discretionary exemption if it was invoked at the time access was denied to the applicant. Mandatory Exemptions: When conducting a review, the OIPC will apply a mandatory exemption if it was missed by a government institution at the time access was denied to the applicant. See Appendices: Help with FOIP!!! What to Look for When Reviewing a Record for Release under FOIP Help with FOIP!!! What to Look for When Reviewing a Record for Release under LAFOIP
53 One of Three Scenarios During Records Review 1. Full Disclosure of Records 2. Partial Denial of Records 3. Full Denial of Records
54 Full Disclosure Make two copies of the original responsive records: one is for the applicant; and one is for your access request file. Prepare notification letter. Sample Full Disclosure Letter included in Model Letters package.
55 Partial Denial Some of the records responsive to the applicant’s request may not be releasable: Portions may be withheld in full or withheld in part.
56 Severing Records “Where a record contains information to which an applicant is refused access, the head shall give access to as much of the record as can reasonably be severed without disclosing the information to which the applicant is refused access.” See section 8 of FOIP and 8 of LAFOIP. If there is information in the record that will not be disclosed, you sever the exempt information rather than deny access to that record in full.
57 Severing Tips: Some useful items to have on hand removable cover-up tape black markers scissors white out blackout text electronically if you plan to print and disclose the paper record. pens (for section notations)
58 Useful Severing Methods CAUTION!!! When severing information, make sure the information cannot be read. You can do this by: holding the photocopies up to the light and checking to see if you can still see the severed words; and have someone else look at the documents. Always make sure a photocopy - not the original severed copy - is sent to the applicant! If disclosing electronic records – make sure any severing cannot be electronically reversed by the applicant. See Appendix: Samples of Severing Paper and Electronic Records
59 Quote the Section FOIP requires that an applicant must be informed why information is being refused in part or in full. If you are severing information from responsive records you should: quote the specific exemption provision beside what’s being severed (e.g. – subsection 29(1) of FOIP – personal information); and where appropriate, create an index for the applicant. The index can include: a listing of sections being invoked; and an explanation of what each section is and where the exemption(s) apply. Include an index if it makes sense for the specific circumstance (see next slide for sample). Sample Partial Denial Letter included in Model Letters package. See OIPC Report No. F-2006-003.
60 Sample Index Page #Section(s) of FOIP Cited Reason 129(1)Severed – personal information of an identifiable individual 216(1)(a), 22(c)16(1)(a) applies to full page – policy options for members of Executive Council to consider. 22(c) applies to portions of the page as advice from legal counsel.
61 When a request is fully denied Review of records shows that access request will be denied in full. If more than one exemption applies – quote all exemptions. A response is required even if the records are fully denied. Sample Full Denial Letter included in Model Letters package.
62 What’s been done so far? Clarified request (if necessary). Found responsive records. Collected fees (if necessary). Prepared an extension letter (if necessary). Reviewed the records. Identified exempt records (if any). Severed any necessary information. Prepared notification letters. It’s time to finalize the request, which includes: routing for signature; and sending response to applicant.
63 Workshop Exercise Three Review records for disclosure and identify information exempt from release (if any). See handouts.
65 Finalizing the Request: Out the Door The access request is ready to go. The following has been completed: the records are prepared for release; legal opinions have been sought (if necessary); and the notification letter is ready. Time to route for approval and Access Officer’s signature.
66 Routing Request for Sign-Off Allow a few days at this stage. There is not a standard list, but you might consider the following: the program manager division head/vice president Communications Office Deputy Minister/President’s/CEO’s Office Access Officer Make the approval process work for your organization and limit it to those who need to know. Keep the approval process as simple as possible.
67 Sending to applicant Access Officer has signed off and the response is ready to go. Last things to consider: mark the envelope “Confidential” to applicant; determine best way to send to applicant (e.g. – mail, courier, make arrangements for applicant to pick-up); and ensure copies of all correspondence have been retained on your access file for the particular request.
68 The access request is complete, right? The access request is complete, is a Request for Review possible? Yes!! Applicant has one year from the date of the final notification letter to request a review to the Office of the Information and Privacy Commissioner See section 49 of the FOIP Act.
69 Grounds for Review to the Commissioner Grounds for review include: “…an applicant is not satisfied with the decision of a head pursuant to section 7, 12 or 37.” see section 49(1)(a) of FOIP Act “…a head fails to respond to an application for access to a records within the required time.” see section 49(1)(b) of FOIP Act “…an applicant requests a correction of personal information pursuant to clause 32(1)(a) and the correction is not made.” see section 49(1)(c)of FOIP Act There are also provisions to Request a Review when third party notification is necessary. See section 34 to 37 of the FOIP Act
70 The Office of the Information and Privacy Commissioner Information and Privacy Commissioner: R. Gary Dickson, Q.C. Access Request Review Reports recommendations of the Commissioner available at www.oipc.sk.cawww.oipc.sk.ca Consider his recommendation reports as you: respond to access requests; and prepare submissions for a formal review.
72 Lots of Information – Some things not covered Time did not permit enough time to cover everything. Contact our office whenever you have questions.
73 Appendices for this Workshop FOIP Act and Regulations – available from the Queen’s Printer Help With FOIP!! Access Request Checklist Help With FOIP!! Access Request Checklist: Third Party Notification Required FOIP / LAFOIP Process (Flow Chart) Help With FOIP!! Access to Information Requests: Logging and File Set Up Help With FOIP!! What to Look for When Reviewing a Record for Release Under FOIP Samples of Severing Electronic and Paper Records Help With FOIP!! Model Letters – Access to Information Requests Access Tools Look for Resources and Tools on the APB web site : www.justice.gov.sk.ca/accessandprivacy www.justice.gov.sk.ca/accessandprivacy
74 Useful Websites Access and Privacy Branch www.justice.gov.sk.ca/accessandprivacy Office of the Information and Privacy Commissioner www.oipc.sk.ca Office of the Queen’s Printer www.qp.gov.sk.ca
75 Contact Information Access and Privacy Branch Ministry of Justice and Attorney General 1020 – 1874 Scarth Street Regina SK S4P 4B3 Ph: (306) 787-5473 Fax: (306) 798-4064 E-mail: firstname.lastname@example.org@gov.sk.ca Web site: www.justice.gov.sk.ca/accessandprivacywww.justice.gov.sk.ca/accessandprivacy