S1-Episode 3: Demystifying the FOI Process

Patricia Kosseim:

Hello. I’m Patricia Kosseim, Ontario’s Information and Privacy Commissioner, and you’re listening to Info Matters, a podcast about people privacy and access to information. We dive into conversations with people from all walks of life and hear real stories about the access and privacy issues that matter most to them.

Welcome to another episode of Info Matters. So happy you can join us today.

Our topic is access to information. Information helps citizens gain a better understanding of government decision-making and the kinds of policies and issues that matter to them. It helps ensure government transparency and it holds public institutions to account for their actions. Many of the breaking news stories we learn about almost every day start with facts that investigative journalists were able to get through access to information requests. Researchers use publicly held information to conduct studies and help advance knowledge on important issues. And as taxpayers, we all want to know what dollars get spent out of the public purse, how much and on what. As concerned citizens, we might want to ask our municipality about environmental risks and zoning issues, and commercial companies want information about government procurement or contracting processes to ensure fairness vis-a-vis their competitors. Even now as we continue to battle COVID-19 people are already seeking access to information about how government is managing the response to the pandemic.

In this episode, we’re going to explore the right of individuals to access government-held information, how they go about getting it, and the role that my office plays in upholding the public’s right to know.

My guest today is Gillian Shaw. She’s our Director of Adjudication at the IPC. Gillian’s a lawyer by background who began her career in private practice, then went on to serve more than a decade as Tribunal Counsel at the Workplace Safety and Insurance Appeals Tribunal. She joined the IPC as an adjudicator in 2014, and now she leads our team of adjudicators dedicated to hearing and deciding appeals under Ontario’s provincial and municipal privacy and access laws. She has a very deep knowledge and experience in this area, and I’m going to be asking her to describe the ins and outs of access to information.

So Gillian, welcome to the show.

Gillian Shaw:

Thank you very much. Happy to be here.

PK:

Let’s start at the beginning. A lot of people don’t know what kind of information government institutions hold and what they have a right to ask for. Can you explain a little bit about what kind of information they’re entitled to?

GS:

So just to start off in broad strokes, basically people can ask for anything in a government’s record holdings. There are no lists per se, in either of those pieces of legislation that you mentioned. It is a really broad general right of access to any information in the record holdings of an institution. And by institution, I mean a provincial body or a municipal body that’s covered by one of those acts. So provincially, it would be ministries, hospitals, universities, that type of thing. Municipally, of course, we’re talking about municipal government as well as transit authorities and municipal boards. So it’s a very broad right of access.

That being said, although there’s no list per se in the legislation, there are some directories on government websites. There’s a directory of institutions and directory of records available from these institutions at ontario.ca. That’s the Ontario government’s website. There are lists there. And some ministries also have on their own websites their own directory of records. So those things are available.

People don’t need to give a reason for asking for access to records, but some examples of reasons why people would ask are those that you mentioned in your introduction. So researchers who are looking for information to incorporate into their research studies, organizations or other companies wanting access to information about, say, government purchasing decisions, journalists looking for information to write news stories, that’s quite common. Or just regular people looking for information, for example, on how their municipal government is dealing with environmental issues or dealing with government spending or people who are asking for their own personal information that’s held by government. So, for example, people making requests to a local police force for information that might be held about them.

PK:

So Gillian, all that might sound a little intimidating for some people, you know, having to deal with big government. Tell us, break it down for us and tell us how difficult really is this process.

GS:

It’s actually not difficult at all. It’s quite straightforward. What people can do to start off is just go on to either the IPC website or the website of the institution that they’re going to be making their access requests to and find the access request form and fill it out and submit it to the institution. And it’s really as easy as that. Institutions are expected to respond to these requests, so people should never feel like they’re a troublemaker or a nuisance for making these requests. It’s the law and institutions are used to getting these and they actually have a duty under the law to help requesters. If requesters are a little unsure of how to phrase a request or need help formulating it properly, the institutions actually have that obligation to help them.

PK:

So institutions have that duty to assist and people have essentially the right to ask is basically the bottom line?

GS:

Absolutely.

PK:

Speaking of absolutely, not every access to information request is absolute or your right to access information is an absolute. Can you explain to our listeners what the limits are to an access to information request? What information, for instance, you wouldn’t be able to get access?

GS:

Sure. There are a couple of examples. Basically, as I said, at the outset, it’s a general right of access to government information, but that being said, there are a few things that are just carved right out of the legislation that people can’t expect to receive under the freedom of information legislation. A couple of examples of that type of information is, say, information relating to an ongoing prosecution or information relating to employment matters that the institution has an interest in. So in plain speak, say if I were to write to an institution and ask for an HR file of somebody who works there, that would be excluded from the legislation entirely.

But in addition to that, there are also some other exceptions. They’re called exemptions under the access to information laws. Those basically say that there are some exceptions to what people can expect to receive. Some more commonly used exemptions that institutions will rely on are personal information of another individual, is something that institutions can choose not to disclose. Another example is commercial information of a third-party that’s held by the institution or disclosure could cause some harm to that third party for example, commercial harm.

PK:

That’s very helpful. That gives our listeners a good idea of what you can or can’t ask for. Can you talk a little bit about the how? How can individuals submit access to information requests?

GS:

You just get the form, fill it out and submit it. Institutions have an obligation to process these kinds of requests and you submit it and you pay your request fee, and then the institution has to respond to your request with a decision.

PK:

You mentioned costs, Jillian. How much does this cost exactly?

GS:

The short answer is it depends, but let me elaborate. So you filled out your form and first of all, you have to submit a $5 request fee to the institution, along with your request form. And then the institution has 30 days to respond to, unless they extend their own time, and I’ll get back to that in a moment. But they can, yes, they can charge a fee in addition to that $5.

Once the institution has had a look at what kind of information they have that relates to your request, they can ask you for a fee. The fee is set out in the legislation. Institutions are actually required to charge fees. They’re set out in the legislation and in the regulation. It’s not a full cost recovery kind of mechanism, but there are set fees that the institution can charge for the time that they take to search for records and the effort and expenditure in putting those records together to disclose to the person. But they do have to give a fee estimate to the person who’s making the access request. That way the person knows kind of what they’re faced with and whether to proceed with their requests.

PK:

So cost is definitely a consideration, and as we know, so is time. So to make your access to information request as expedient as possible, or to get it processed as fast as possible, do you have any recommendations for listeners on what are the ingredients of a good access request? What would you recommend people do in order to get their request processed faster?

GS:

Sure, happy to. And that gets back to my previous point about time extensions. If an institution is faced with a really, really broad request for all kinds of information from a million different departments and individuals, that’s going to take some time and the institution might say, “That’s going to take us more than 30 days and we’re asking for an extension of time to do that.” To avoid that from happening and to avoid a large fee being thrown at you as a requester, it is a really good idea as much as possible to narrow your request, to really hone in on what is it that you’re looking for. You might have a very good idea of what it is that you want and where in the record holdings of the institution, that information might be expected to be found.

That’s something I would really recommend. Be as specific as you can and tell the institution where they might find this particular record if you have a pretty good idea yourself. Because the thing to remember too, is that the person at the institution who gets this request, it’s their Freedom of Information Coordinator. And they don’t necessarily know off the bat just from looking at your request, what exactly what you’re after. But if you tell them the department they can say, “Oh yeah. Well we will check with them and see what they have.”

PK:

So in other words, try to be as specific as possible.

GS:

Absolutely.

PK:

Now they’ve put in all this effort, they’ve put in their specific requests, they’ve paid their fees, they’re expecting an answer and lo and behold, they get a refusal and the institution refuses the access to information request. Talk to us a little bit about that. It must be disappointing for people at that stage. Tell us what can they do when they don’t get the documents they’re looking for.

GS:

Sure. One of the other obligations under the laws is that the institution has to say why they’re refusing, so they have to issue a written decision. It’s just a letter. It’s called a Notice but it’s a decision to the requester and explain what their decision is. The institution might be relying on one of those exemptions that I talked about and deny access on that basis. If they do that, then the person can appeal to the IPC and they can get our office to take a look at whether the institution’s decision was the right one or not.

PK:

Once they contacted our office and they’ve decided to appeal the institution’s decision, can you tell us a little bit about that next part of the process in terms of the timelines, the fees. Anything you can tell listeners about that process and help demystify for them would be great.

GS:

First thing to know is that the person has 30 days to appeal to our office. So that’s an important thing to keep in mind. Once you get a decision from an institution, if you don’t like it, then certainly you’ll want to move quite quickly to appeal it to the IPC. There is an appeal fee of $25 if your request was just for general information, but it’s a $10 fee if your request was for your own personal information. So there is that appeal fee. And then our office will take a look at the appeal and process it.

I should say right off the bat, that in some cases we can’t accept an appeal, for example, if the appeal fee is missing, or if somebody is trying to appeal something that is just completely outside of our jurisdiction. So let’s say they wrote to some organization, say a charity and asked for information and they didn’t get it and they try to appeal that to us. In that case, our intake staff would say, “I’m sorry, but this is not something that we have jurisdiction over,” and so the appeal would not be accepted. But assuming that the appeal is accepted, it’s a proper appeal, there’s the fee, and it’s a decision of an institution that we have jurisdiction over, then the appeal then proceeds through our process and there are various steps that we will take to process the appeal.

PK:

Can you tell us a little bit or tell our listeners a little bit about the steps in the process? I know there are several, and it would be really helpful if you could break those down for us a little bit.

GS:

Absolutely. Every appeal is different and not every appeal will go through all of these steps. In broad strokes, there are three steps. There’s intake, mediation, and adjudication.

At the intake stage, the IPC staff are really just taking a look at the appeal. One of the first things they’ll look at is whether it’s something that can be resolved quite quickly. And some appeals can be resolved quickly. An example is where an institution has extended its own time for responding to an access request and the requester doesn’t like that and appeals to our office, intake staff can sometimes resolve that quite quickly.

Otherwise, appeals will often go straight to mediation. So intake staff really just process the appeal, make sure that they have all of the right documents, and then send it straight on to mediation. And then at that point, a mediator’s assigned to the appeal and they try to settle it. I’ll give you some examples of what can happen at mediation. Some people think of mediation as a process where everybody gets into a room and they’re mediating. And at the IPC, we do it a little bit differently. Our mediators for the most part do what’s called “shuttle mediation.” That involves talking on the telephone with the institution and finding out some information from them about the reasons for their decision and then doing the same with the appellant and finding out what their interests are and why they’re seeking the information, and then trying to find some common ground. Our mediators have great success. I’ll get into some stats a little later in this program, I think.

But that’s generally what the mediators do is try to figure out what everybody’s interests are and try to settle the matter. Sometimes it’s thinking outside the box as well. And it will become evident that what the person really wants is something a little bit different maybe from what they said on paper. That’s the mediation step.

If the appeal is not settled at mediation, or if all of the issues are not settled, then the appeal moves along to the adjudication stage, which is my team of adjudicators. An appeal would be assigned to an adjudicator and they will conduct an inquiry into the issues under appeal, and at the end of that process, they’ll issue an order.

Again, people often have questions about what does adjudication look like? Is it like going to court? Again, for the most part, it’s not. We do hold oral hearings sometimes, but for the most part, it’s a written process. The adjudicator will write to one party to begin with, send them a document called a notice of inquiry that sets out the issues and what they want to hear from the party on, and the party will write down their arguments. We call them representations, but that’s just a fancy way of saying their arguments and their position on why, in the institution’s case, why they made the decision they did. And then it’s the appellant’s turn, and they will explain why they think the information is not exempt under one of those exemptions, for example.

So that goes on until the adjudicator reaches a point where they’re satisfied they have enough information and then they’ll write their decision. They will decide the issues on appeal. Was the institution correct when it decided to deny access, or should they be ordered to disclose the information?

PK:

That’s interesting because some people might not realize when they make an appeal to the Information and Privacy Commissioner’s Office, that the order or the decision they’ll ultimately get is not actually signed by the commissioner; it’s signed by one of the adjudicators, which is you and your team. Can you describe your role a little bit and explain why in the end an adjudicator will sign off on these orders?

GS:

Absolutely. That’s a really good point because if people will take the time to read the act, it says that the commissioner makes a decision. Luckily for you, you have powers of delegation and the commissioner can delegate her decision-making authority to others at the office. Every one of our adjudicators is a delegated decision-maker. The commissioner signs a delegation document. And all of the adjudicators in my team are delegated decision-makers. So when they issue a decision, it’s under the authority of the act and under that delegation.

PK:

In fact, I remember my very first act as a commissioner on July 1^st when I started, was signing all these delegations of authority.

Remind me, how many adjudicators are on your team? How many of these did I sign?

GS:

A lot. All told we are in the neighborhood of 20. So yeah, you did do a lot of signing there.

I just wanted to get back for a moment to what happens after we issue an order. Some of our listeners might be wondering what happens if they don’t like our decision. What they can do is they can apply to court to have our decision overturned. But it’s not like going to court on TV; it’s a very dry hearing. What happens is the court takes a very hands-off approach and they will just look out whether the IPC’s decision was reasonable. The court will not get right into the merits of the matter and re-decide it. They will just take a look at what evidence was before the decision-maker and whether the decision-maker came to a reasonable decision. That is something that doesn’t happen very often, but it is something that a party has an option to pursue should they wish to do so.

PK:

You mentioned stats earlier. I think it would be really helpful to go over some of those and give listeners a sense of proportion. How many appeals come in the door go the process, at which stage, and ultimately how many will bubble up to the final end, which is through the court process? That would be really helpful.

GS:

In 2019, there were over 60,000 freedom of information requests filed across Ontario. In that same year, we only received 1,400 appeals. Already that’s a drop in the bucket. The vast majority of FOI requests, as we call them, are resolved between the requester and the institution and they don’t even get seen by the IPC. But of the appeals that do come into our office and start off through those processes that I talked about, most of them are resolved before reaching the adjudication stage. So they’re resolved, 75% of them are resolved at intake remediation. So again, our staff do a wonderful job of talking to the parties and resolving them before they have to reach the adjudication point.

And then after an order is issued, the proportion of cases that actually get taken to judicial review is very, very small. In 2019, we actually had only one court hearing and five judicial review applications were closed or heard. So very, very small proportion of our decisions actually get taken to court.

PK:

So 60,000 requests and ultimately not even half a dozen will make their way to the court ultimately

GS:

Exactly.

PK:

That’s very helpful. Particularly I was impressed when I arrived to learn how many of these appeals get resolved, particularly at intake and at mediation. And you’re right. There’s an awful lot of work that’s done through that process to try to either come to a resolution, or at least as I learned when I arrived, whittle down the issues. So mediation can also not only come up with the ultimate answer, but conserve to whittle down the issues so that when the cases do go to adjudication, at least the cases is a lot narrower at that point. So that helps an awful lot too, doesn’t it?

GS:

It does. That’s an excellent point. The mediators, again, they do a fantastic job even if the case can’t be completely settled, the mediators do a wonderful job of just coming up with the key issues that need to move forward to adjudication. So an appeal that started off with 10 issues might come to adjudication on one issue because everything else has been resolved, so that’s really terrific.

PK:

Yeah. I started off the episode saying how fundamentally important the right to information and the right to file an access to information request is, and that’s certainly true. It’s a fundamental pillar of our democratic society, but not all of the requests, some of them in fact are frivolous or vexatious in nature, which is unfortunate. And in fact, the act acknowledges that to a certain extent that in the rare case it does happen. They can be really difficult to deal with. I know, because I hear about these really tough cases.

Can you talk to us about frivolous and vexatious requests? What are they and how do you deal with them and how does the law treat them under the acts?

GS:

The law actually includes a provision, a section about frivolous and vexatious requests. So just to backtrack for a second, you’re absolutely right when you say that for the most part when citizens are making freedom of information requests, they’re just seeking information. They’re making these requests in good faith and for whatever reason, although they don’t have to give a reason, but for whatever reason they want this information. There are sometimes people who abuse it. And so they will, for example, keep submitting the same request over and over, or they will make a hundred FOI requests in a week, or they will submit what looks like one request, but it actually is about a hundred all in one, and they will persist to the point where the institution just can’t keep up. And in the language of the legislation, it actually interferes with the institution’s operations.

At that point, the institution can deny access to the records. That’s not because an exemption applies, but it’s because the request is frivolous or vexatious. The institution can just say in their decision letter, “This is a vexatious request.” If that happens, then the person who asked for the information can appeal that decision to our office. We will deal with that as we would any other appeal. We will take a look at it and come to a decision. If it was frivolous or vexatious, we will uphold the institution’s decision and we’ll put some limits on what this person can do going forward in terms of whether they can keep making access requests, and if so, how many at a time, how many in a given period. The same with appeals to our office. We might set limits on the number of appeals that they can have open at our office at any given time.

It is a high bar, as you said. The right of access is pretty fundamental, and so we are loath to interfere in that right of access. If the IPC says, “No. It’s not frivolous or vexatious,” then we will order the institution to make another access decision.

PK:

Unfortunately, there are many people waiting in line, and, of course, our resources are limited. It is a tough balancing act. I certainly can appreciate it.

Thank you for all your insights. It’s been a great discussion. I’m glad we had the chance to invite you to this episode. You’ve certainly helped clarify some of the finer points of access to information and the whole processes for our listeners out there. So for that, I thank you very much.

For those of you who want to learn more about our appeals and other access to information topics, you can visit our website at ipc.on.ca. You can always contact our office for assistance and general information about Ontario’s access and privacy laws.

Folks we’ve come to the end of another episode. Bye for now.

I’m Patricia Kosseim, Ontario’s Information and Privacy Commissioner, and this has been Info Matters. If you enjoyed the podcast, leave us a rating or review. If there’s an access or privacy topic you’d like us to explore on a future episode, we’d love to hear from you. Send us a tweet at IPC info privacy, or email us at @email. Thanks for listening. And please join us again for more conversations about people, privacy, and access to information. If it matters to you, it matters to me.