Chapter 3: Access to Records

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Contents

Overview
3.1 Who has a Right of Access
3.2 Receiving a FOIP Request
3.3 Response time limits
3.4 Processing a FOIP Request – Search and Retrieval
3.5 Assessing Fees
3.6 Abandonment of Requests
3.7 Processing a FOIP Request – Reviewing and Preparing Records for Disclosure
3.8 Responding to an Applicant
3.9 Completion of Request and Closure of Request File

This chapter covers

• the right of access to records;
• what to do when a FOIP request is received;
• how to deal with access requests that include health information if the public body is also a custodian under the Health Information Act;
• how to transfer a request;
• response time limits;
• steps in processing a FOIP request;
• how to assess fees; and
• how to manage request files.

For a diagrammatic overview of the FOIP request-handling process, see the flow chart.

Any person has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant (section 6(1) of the FOIP Act).

There are no restrictions as to who may make a request. The applicant can be any person who is residing inside or outside of Alberta, including individuals, corporations, and organizations. The Act does not specify a minimum age, which means that minors may also make requests.

Form of the request

Section 7(1) of the Act provides that an applicant must make a request to the public body that the applicant believes has custody or control of the particular record(s).

An applicant means a person who makes a request for access to a record under section 7(1).

Section 7(2) requires that the request be in writing and provide enough detail to enable the public body to identify the record.

The applicant can use the official request form. A copy of the Request to Access Information Form can be found in Appendix 5 of this publication. Public bodies may either use this form or create one of their own. Alternatively, an applicant may simply write a letter, requesting records and referencing the FOIP Act.

Section 7(3) permits applicants either to examine the record or to obtain a copy of it. As long as the original request was properly made, a change to the original terms of the request, for example, where the applicant asks to examine records rather than to receive copies, may be verbal (see IPC Order 99-011).

Section 6(3) states that the right of access is subject to the payment of any fee required by the FOIP Regulation.

Section 10 of the FOIP Regulation states that an initial fee of $25.00 for a one-time request, or $50.00 for a continuing request, must accompany a request for general records. There is no initial fee when the applicant is requesting his or her own personal information (section 11 of the FOIP Regulation).

Alternative methods of requesting access

Section 4 of the FOIP Regulation establishes that an applicant with limited ability to read English, or an applicant with a physical disability or condition that impairs the ability to make a written request, may make an oral request.

Public bodies should assist individuals seeking records under the Act who are disabled, do not have literacy skills or are otherwise unable to exercise their rights under regular procedures.

In the case of individuals with a hearing impairment, telecommunications devices for the deaf (TDD) should be used. For public bodies that use the Service Alberta call centre, use should be made of the toll free number 1-800-232-7215, and in Edmonton 427-9999, as a telecommunications device for the deaf. For visually impaired applicants, consideration should be given to helping the applicant in making a request by assisting in filling out a request form.

If an applicant lacks the literacy skills needed to make a written request, the public body should assist the individual in putting an oral request into written form.

A public body only needs to deal with a request in a language in which the body normally conducts business.

Some individuals who live in remote areas may be disadvantaged in comparison with other members of the public in their ability to make a FOIP request. Public bodies should take such situations into account and assist applicants in ways that will enable them to exercise their access rights without excessive cost or delay.

Duty to assist applicant (Section 10(1))

The head of a public body must make every reasonable effort to assist applicants, and to respond to each applicant openly, accurately and completely. The public body's obligations under section 10(1) continue throughout the request process.

Every reasonable effort is an effort which a fair and rational person would expect to be done, or would find acceptable (IPC Order 98-002).

The Information and Privacy Commissioner has provided a considerable amount of guidance on the duty to assist in Orders issued on a broad range of different cases. These Orders relate to situations that vary widely with respect to the type of applicant, the records involved, and the nature and context of the request. The public body's assistance to the applicant was often just one issue among many to be decided by the Commissioner. How a public body fulfils its duty to assist will vary according to the circumstances of each request, and requires the exercise of judgment in each case.

The duty to assist applies to a request by an applicant under the section 7 of the Act. This duty also applies to an applicant's request for a fee waiver under section 93(3.1).

The Act does not expressly require a public body to meet the duty to assist under section 10(1) when responding to an individual's request for a correction of personal information under section 36(1). While the Commissioner has so far not ruled on this point (see IPC Order 98-010), public bodies are advised to consider the purposes of the Act when responding to any request under the Act.

The duty to assist under section 10(1) generally arises when a public body is performing activities that are not explicitly addressed in other provisions of the Act (as are, for example, fees and time limits). The most important aspects of the duty to assist are likely to arise in the course of

• providing the information necessary for an applicant to exercise his or her rights under the Act;
• clarifying the request, if necessary;
• performing an adequate search for records; and
• responding to the applicant.

Some of these stages are discussed in detail later in this chapter. This section is concerned with the way in which the duty to assist is engaged when performing these activities. The Commissioner has said that a public body may take into consideration that a sophisticated applicant, such as a professional researcher, may not require the same level of assistance as another kind of applicant (IPC Orders 96-014 and 2000-021).

Providing information necessary for the exercise of rights under the Act

A public body's duty to assist is engaged when the public body has received an access request under section 7 of the Act. A public body has no legal obligations under section 10(1) until a prospective applicant has submitted a request (IPC Order 99-011 and IPC Investigation Report 2001-IR-004).

If there is any uncertainty as to whether a request is a request under section 7 of the Act, the public body should clarify this with the person making the request and inform the individual of the procedure for making a request under the Act (IPC Investigation Report 99-IR-004 and IPC Order 2001-013). If there is more than one procedure for obtaining access to information, a public body must inform the applicant that a dual process is in place (IPC Order 98-002).

A public body that has received a request for personal information under section 7 of the Act will not meet its duty to assist under section 10(1) unless it responds in accordance with the requirements of Part 1 of the Act (see IPC Order 99-035). If the public body believes it would be more appropriate to disclose personal information under section 40 of the Act, the public body should advise the applicant of the implications of a decision to proceed in that way (for example, the person would have no right to request a review by the Commissioner). If the person agrees to a different process, the person must withdraw the access request.

Clarifying the request

Many applicants are unfamiliar with the organization and administrative practices of public bodies. They may not be aware of the process by which a public body reaches or implements a decision or policy, the kind of records that may be generated in the course of that process, and the process of disposing of the records.

The FOIP Coordinator may need to assist the applicant in clarifying the request so that the public body can retrieve records of interest to the applicant (IPC Orders 97-006 and 98-012). Clarification of the request may involve assisting the applicant in defining the subject of the request, the specific kinds of records of interest, and the time period for which records are being requested.

The FOIP Coordinator must exercise care in questioning an applicant about the nature of his or her interest in a particular subject. If a question to an applicant could be seen as dissuading the applicant, or as a means of trying to obtain information not needed to process the request, the question should not be asked (IPC Order 2000-015). It is generally not necessary to ask why an applicant is asking for particular records.

Narrowing a request as a result of the clarification process can have significant implications for fees. The Commissioner has said that a public body has a duty to engage in the clarification process up to the point when the fee estimate is provided (IPC Orders 99-011 and 2000-022). However, a public body has no obligation to request clarification of a request that is, on its face, very clear (IPC Order 2001-013).

Clarifying requests is discussed in greater detail later in this section.

Performing an adequate search for records

A public body must conduct an adequate search for records that are responsive to the applicant's request (IPC Orders 97-006 and 98-012).

The Commissioner has said that there are two components of an adequate search. The public body must

• make every reasonable effort to search for the actual record requested; and
• inform the applicant in a timely fashion of what it has done (IPC Orders 96-022 and 98-012).

A public body must make a reasonable effort to identify and locate records responsive to the request (see IPC Order 2000-030). A public body cannot decide not to conduct a search for records on the basis of an opinion that no responsive records exist (IPC Order 99-021). In a case where a public body has conducted a previous search in response to another request, if there is any doubt that the request is for substantially the same information, the public body must conduct a completely new search. If the other search was substantially similar but earlier, the public body must search for records that may have been created since the earlier request (IPC Order 99-021).

A public body must search all locations, including off-site locations, where records might be found (IPC Order 99-021). The search strategy, not the amount of time spent on a search, will determine whether a public body has conducted an adequate search (IPC Order 99-039).

A public body must be prepared to support claims for the adequacy of a search with evidence as to how the public body conducted its search in the particular circumstances (IPC Orders 98-003 and 2000-030).

A public body is not required to search for records in the custody or under the control of other public bodies (IPC Orders 97-006, 99-021 and F2003-001). It is not part of the duty to assist for a public body to inform an applicant of the location of other records (unless the public body knows that records may exist elsewhere), to provide indexes to files that are not required to be located and reviewed as part of the request, or to provide records retention and disposition schedules when they have not been requested (see IPC Order 99-039).

A public body's responsibilities in searching for and retrieving responsive records are discussed in greater detail in section 3.4 of this chapter.

Responding to the applicant

A public body must respond openly, accurately and completely. Even if an applicant has requested records that are not subject to the Act, the public body must respond and inform the applicant that records cannot be obtained under the Act (see IPC Order 2000-022).

In a case where more than one public body has received the same request from the same applicant, each public body must respond to the request on its own behalf (see IPC Order 99-035).

Copies of records must be legible where possible. When a record is severed, the public body should clearly identify the basis on which the record was severed (IPC Order F2003-020).

The duty to assist does not require that public bodies provide medical or legal interpretations of the information in records, or provide information to clarify the information in the records. It is also not necessary to disclose the nature or contents of records that are withheld in a response to an access request (IPC Order 2001-041). A public body is not generally required to make an applicant aware of records that may relate to the applicant's request but have not been specifically requested (IPC Investigation Report 2001-IR-010).

Responding to an applicant is discussed in greater detail in section 3.8 of this chapter.

Acknowledging receipt of request

The public body should acknowledge receipt of a request. This acknowledgment may indicate that the request

• has been received and processing will commence;
• is incomplete because the initial fee has not been paid and is required before processing can commence; or
• is not clear or precise enough and more information is needed to clarify it before processing can commence.

Under section 7(2) of the Act, a request must provide enough detail to enable the public body to identify the record. If processing cannot begin immediately because the request is not clear, an effort should be made to contact the applicant by telephone to resolve any problems quickly. There is no provision in the Act for putting a request on hold pending clarification with the applicant (see “Clarifying requests” later in this section). However, the time limit for responding to the request may be extended under section 14(1)(a) if the applicant does not give enough detail to enable the public body to identify a requested record.

A written follow-up to the initial telephone contact with an applicant is good practice. It will provide a definite reference point as to when processing commenced and a statement of the agreement between the public body and the applicant as to the nature and scope of a request that has been clarified.

Model Letter A in Appendix 3 sets out various options for acknowledging receipt of a FOIP request.

Continuing requests (Section 9)

This section of the Act provides that an applicant may ask that a request continue in effect for a specified period of time up to two years. This permits the applicant to continue to receive records concerning a particular subject or issue at regular intervals over time, for example, quarterly.

The head of the public body may choose to accept or reject a continuing request. If the head accepts a continuing request, the public body may still determine the schedule for release of records so that it meets both the needs of the applicant and the operational constraints of the public body.

The head of a public body may have grounds for rejecting a continuing request if

• the situation or event that is the subject of the request is not an ongoing matter and there is no basis on which to set up a continuing request; or
• the situation that is the subject of the request is dependent on other actions involving the applicant and the applicant is receiving the information routinely on an ongoing basis.

The Act applies to a continuing request as if a new request were received on each of the dates on which processing of an instalment of the request is due to begin. The public body is required to provide the applicant with a schedule indicating the series of dates when the request will be deemed to have been received, and to inform the applicant that he or she has the right to ask the Commissioner to review the schedule. On each scheduled date, the time limit for responding to the request begins again.

Section 12(3) of the FOIP Regulation requires a public body to provide an estimate of the total fees payable over the course of the continuing request. A new fee estimate need not be provided on each of the scheduled delivery dates. Rather, the public body must decide what portion of the estimate will apply to each delivery of records in the continuing request and provide this information to the applicant. To do this, the public body would estimate the total fees payable over the course of the continuing request and decide how much of that estimate is likely to apply to each delivery (see IPC Order 97-019).

Model Letters A and B in Appendix 3 of this publication deal with continuing requests.

Request for access to personal information about an applicant

Individuals may make requests for information about themselves.

It is usually obvious on the face of the request that someone is requesting his or her own personal information. In some instances, however, someone else may be applying on behalf of the individual, and it will be necessary to determine whether the applicant has the authorization of the individual involved or some other right under the Act. Common examples of persons who might reasonably request information about another individual are the legal representative of the individual, and the parent of a young child.

At times it may not be clear whether an applicant is requesting his or her own personal information or general records about a subject in which the individual has been involved. The Information and Privacy Commissioner dealt with this issue in IPC Order 97-003. A three-part test was applied, which proposed that the public body

• consider the wording of the request;
• characterize the request as to whether it is primarily for general records or is for personal information about the applicant; and
• decide whether the records relate to and are responsive to the request being made and whether the preponderance of records relates to the individual.

On this basis, the public body decides whether or not it is dealing with a request for personal information.

For further guidance on requests by representatives of individuals who may be empowered to seek personal information on behalf of an individual, see Chapter 2.5 of this publication.

Request for access to personal information that includes health information

For public bodies that are not custodians under the Health Information Act

For these public bodies, information about an individual's health and health care history that is part of an access request is considered personal information under section 1(n)(vi) of the FOIP Act.

For public bodies that are custodians under the Health Information Act

In the event that a public body subject to both Acts (e.g. a regional health authority, the department of Health and Wellness, the Alberta Mental Health Board or the Alberta Cancer Board) receives a request for access to an individual's personal information, the rules regarding access to information under the Health Information Act would apply to the individual's health information. Subject to section 4(1)(u), the rules regarding access to personal information under the FOIP Act would apply to the individual's or another person's personal information, as that term is defined in section 1(n) of the FOIP Act.

For example, if a visitor to a hospital was injured during an incident involving a scuffle with hospital security staff and was treated at that hospital, the visitor's health information as a patient of the hospital would be subject to the Health Information Act access rules. However, any other personal information about the visitor collected or created by security staff as a result of the incident would be subject to the access rules under the FOIP Act. Another example of records that may be subject to the two Acts would be employee records that contain both health information and personal information about an individual.

Under section 15.1 of the FOIP Act, if a request for access to a record is made under section 7(1) of that Act, and a part of the record contains information to which the Health Information Act applies, the part of the request relating to the health information is deemed to be a request under section 8(1) of the Health Information Act and the rules in that Act will apply to the processing of that part of the request.

The applicant must be notified regarding the part of the request that will be processed under the Health Information Act, and whether this will affect the timelines for responding. Model Letter A.1 in Appendix 3 can be used to notify an applicant that part (or all) of a request is being deemed to be a request under the Health Information Act. Applying the Health Information Act to part of the request should not have an impact on the request process. The processing of access requests under both Acts is similar.

If FOIP requests and Health Information Act requests are handled by two different persons or offices within a public body, it is important for the two persons or offices to consult with one another to discuss any difficult issues raised by a request for access to records containing both types of information. The public body will have to make decisions regarding the release of records in accordance with the Act that applies to the relevant portion of the records requested.

If both types of requests are handled by the same person or office, a separate file should be opened and a request number assigned for each request. One request would be for access to the individual's personal information and the other request would be for access to the individual's health information.

Although a public body that is a custodian under the Health Information Act will process different portions of an individual's request for his or her own information under the two Acts, it may wish to apply the lower fees of the two fee schedules, where possible, unless the majority of the information requested is health information and significant review time will be required. Under section 10(3) of the Health Information Regulation and section 2(o) of Schedule 2 in the Regulation, a fee may be charged for the time it takes to review and determine whether any severing will be required. Under section 11(2) of the FOIP Regulation, a fee cannot be charged for this review time.

More information on processing requests under the Health Information Act may be found in the Health Information Act Guidelines and Practices Manual (2001), published by Alberta Health and Wellness.

Authorization to disregard requests (Section 55)

In rare instances, a public body may ask the Information and Privacy Commissioner to authorize the public body under section 55 of the FOIP Act to disregard certain requests.

The head of a public body may be allowed to disregard a request if it is

• repetitious or systematic in nature, and processing the request would unreasonably interfere with the operations of the public body or amount to an abuse of the right to make requests (section 55(a)); or
• frivolous or vexatious (section 55(b)).

In considering whether section 55 applies, the Commissioner has said that he will be mindful of the principles of the FOIP Act and the relevant circumstances. A public body must show that either section 55(a) or 55(b) applies to the request (Commissioner's decisions of April 10, 2002 and February 5, 2003).

Repetitious or systematic requests

A public body may request authorization to disregard repetitious or systematic requests only if processing the request would unreasonably interfere with the operations of the public body or amount to an abuse of the right of access.

Repetitious means characterized by repetition. Repetition is the act of repeating an act or things. To “repeat” an act or thing, in turn, is to do the act or other thing over again, one or more times (Commissioner's decision of February 5, 2003).

Systematic means regular and deliberate. The Commissioner found that the submission of five access requests of similar scope over a period of two and a half years was systematic in nature (Commissioner's decision of April 10, 2002).

In determining whether a request is repetitious, a public body may not take into consideration attempts to obtain access to the information through means other than the FOIP Act. Requests made outside the FOIP Act, including requests in the course of the collective bargaining and arbitration processes, are not relevant to section 55 (Commissioner's decision of February 5, 2003).

Similarly, a request under the FOIP Act made after exhausting other avenues for access does not make the FOIP access request systematic in nature. That would be contrary to the intent of the FOIP Act, which is to grant a right to access to information that is not otherwise available to the person seeking that information (Commissioner's decision of February 5, 2003).

The Commissioner ruled that a fourth request for substantially the same records as in three previous requests was repetitious and an abuse of the right to make requests. The FOIP Act was not intended to allow an applicant to resubmit the same or similar access requests to a public body simply because the applicant does not like the information obtained (Commissioner's decision of March 21, 2002).

The Commissioner also ruled that a request was repetitious in a case where the applicant was connected in some material way to, or associated with, a person who had made requests for similar material. The Commissioner found that the applicant's access request was no less an abuse of the right to make requests than if the other person had made the access request. In that case, the Commissioner authorized the public body to disregard future access requests made by those parties, as well as any other requests in which it was clear that the person who made the original requests was the “directing mind” (Commissioner's decision of August 7, 2002).

Unreasonable interference with the operations of a public body might be demonstrated by showing the impact that particular repetitious or systematic requests are having on the resources needed to respond within a public body, and the actual cost of providing a response.

Frivolous or vexatious requests

Frivolous means of little weight or importance (Commissioner's decision of February 5, 2003).

Vexatious means without reasonable or probable cause or excuse (Commissioner's decision of February 5, 2003).

In determining whether a request is frivolous, the Commissioner has noted that information that may be trivial from one person's perspective may of importance from another's. In deciding whether a request was frivolous, the Commissioner considered the evidence and found that the applicant perceived the information sought as a matter of importance and that the focus of the applicant's actions was on the information requested. The Commissioner decided, from an objective point of view, that the access request in question was not frivolous (Commissioner's decision of February 5, 2003).

The Commissioner has ruled that an applicant's attempts to obtain access to information through means outside the FOIP Act, including requests under collective bargaining and arbitration processes, are not relevant in determining whether the applicant's access request under the FOIP Act is vexatious (Commissioner's decision of February 5, 2003).

If an applicant complains to the Commissioner about a public body extending the time limit for responding to a request for which it is seeking permission to disregard, the complaint would likely be dealt with after the section 55 request.

See FOIP Practice Note 9, Authorization to Disregard Request under Section 55, published by the Office of the Information and Privacy Commissioner, as well as the Commissioner's decision of February 5, 2003, for information regarding the procedure for requesting authorization to disregard a request under section 55 and each party's right of reply.

Clarifying requests

Vague or overly general requests may increase workloads and lead to review of information that is of little interest to the applicant. Often requests are broad or vague because the applicant lacks knowledge of the public body, its mandate and programs and the type of records available.

The FOIP Coordinator should establish contact with the applicant to better understand what information will satisfy the applicant's needs. If a request does not sufficiently describe the records sought, a public body should advise the applicant and offer assistance in reformulating the request.

Model Letter A in Appendix 3 deals with this type of situation. There are several things to keep in mind when seeking to define or clarify a request.

Release of information outside the FOIP process

A public body may be able to satisfy an applicant's information needs by providing records that are already publicly available, or that can be made available through a process of routine disclosure. When a FOIP request can be dealt with outside the Act, and if no other fee structure applies, the initial fee should be returned to the applicant, along with a copy of the requested record(s). If there is a procedure in place to refer an applicant to the appropriate program area, the fee should not be returned until the applicant has agreed to have the request handled outside the Act by the program area.

The applicant must agree to withdraw the request; otherwise, the public body is required to respond to it under the Act. In some instances, only part of the information can be routinely released. In such cases, this information should be released and the rest of the request processed under the Act.

Narrowing a request

Changing the scope

After discussion of the nature of a request, an applicant will sometimes change the scope of the request. When this occurs, the public body should document the change and send a notice to the applicant (see Model Letter A in Appendix 3 of this publication).

Clarifying a request in relation to a public body's duty to assist under section 10(1) is discussed earlier in this section.

Documenting and tracking requests

All public bodies should maintain documentation systems to record all deliberations and decisions regarding the processing of requests and to help ensure that the processing of the request meets the requirements of the Act. This documentation may become a critical part of the evidence required during a review by the Information and Privacy Commissioner. It can also be of assistance in the processing of subsequent similar requests (see IPC Order 99-011).

As provided in section 2 of the FOIP Regulation, the 30-day time period for responding to requests commences on the day after receipt of a request in the office of the public body designated to receive such requests. This is normally the office of the FOIP Coordinator.

Authorized offices are listed in the directory published on the web site of Access and Privacy Branch, Alberta Government Services (www.gov.ab.ca/foip) and may be publicized in other ways. Authorized offices are usually the offices of the head of the public body and the FOIP Coordinator.

A request may be delivered to any office of a public body during normal business hours, but the time limit for responding to the request does not commence until the request is received in an office authorized to receive requests.

Section 2(3) of the FOIP Regulation requires the public body to have a reasonable system in place to ensure that FOIP requests are forwarded immediately to the office(s) designated to receive and begin processing them. Reasonable steps might include special forwarding instructions to staff in mail rooms within the public body and to staff that open the mail, as well as use of a colour-coded transmittal file. Most importantly, staff should be aware of the urgent nature of FOIP requests and the need to forward them immediately to the FOIP Coordinator.

Public bodies may choose to establish an automated or manual tracking system. The choice will depend largely upon the volume of work generated by FOIP requests. Automated systems are not normally needed unless a public body receives more than 50 requests annually or the public body is decentralized and there is a need to coordinate responses. If a decision is made to use an automated system, public bodies may use the tracking system available from Access and Privacy Branch, Alberta Government Services.

When implementing or designing a system, public bodies should keep in mind that information is needed for reporting to the Legislative Assembly by the Minister responsible for the FOIP Act on the operation of the Act.

Notices regarding reporting requirements are regularly issued to public bodies by Access and Privacy Branch, Alberta Government Services.

Transferring a request

There are occasions when an applicant makes a request for information to one public body that would be more appropriately handled by another public body. In order to meet the applicant's information needs, it may be better to have the public body that produced the record, was the first to obtain the record, or has custody or control of the record, process the request.

Transferring the request to that public body will ensure that people who are familiar with the information are involved in processing the request and that any decision on disclosure is made in the most appropriate context. A public body has discretion in deciding whether to transfer a request to another public body. The Information and Privacy Commissioner has found no significant relationship between the mandatory duty to assist and the discretion to transfer a request (see IPC Order 2000-021).

Requests for correction of personal information may also be transferred if the information was originally collected, or the record created, by another public body (section 37).

If the FOIP Coordinator is aware that part of a request relates to records of another public body, the public body receiving the request should inform the applicant that he or she can make a request to the other organization for the records relating to another part of the request.

Transfer procedure (Section 15(1))

This provision of the Act provides that within 15 days after a request for access to a record is received by a public body, the head of the public body may transfer the request, and, if necessary, the record to another public body 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 in the custody or under the control of the other public body.

In IPC Order 2000-021, the Information and Privacy Commissioner said that one of the following three conditions must be satisfied for a request to be transferred:

• the public body receiving the transferred record generated the record, whether it created the record itself or instructed an employee or agent to create the record on its behalf;
• the public body receiving the transferred request was the first entity to obtain the record after its creation by another party, whether or not obtaining the record was intentional; or
• the public body receiving the transferred request has custody or control of the responsive record at the time of the transfer of the request.

In addition, the Commissioner said in that Order that the Act does not require the public body transferring the request to consult with the public body receiving the request before the transfer is made. In practice, however, it may be useful to consult with the FOIP Coordinator of the other public body before transferring the request.

In many cases, interest in the disclosure of particular records will exist in several public bodies. This might be the case, for example, with requests for the records of interdepartmental or multi-organizational committees, or requests for records relating to budgeting processes and programs in which two or more public bodies are involved.

In the case of multiple requests to several provincial public bodies for similar records, each public body should process the request that it has received, in consultation with the other public bodies and Access and Privacy Branch, Alberta Government Services.

Access and Privacy Branch may provide a coordinating function for similar requests directed to a number of provincial public bodies. Such coordination involves explaining difficult issues and promoting communication among public bodies. Decision-making about a request will always remain with the public body processing a request.

Transfer of a request for correction (Section 37)

This section of the Act provides that a public body may transfer a request to correct personal information if

• the personal information was collected by another public body, or
• another public body created the record containing the personal information.

If the public body decides not to transfer a request for correction, it should consult with any other public body that collected the personal information or created the record containing the information.

Conditions of transfer (Sections 15(2) and 37(2))

When a request is transferred, sections 15(2) and 37(2) of the Act require the public body that transferred the request to provide notice to the applicant as soon as possible. Model Letter C in Appendix 3 deals with notice to an applicant regarding the transfer of a request.

Sections 15(2) and 37(2) also require the public body receiving the request to make a reasonable effort to process the request within 30 days after receiving it, unless a time extension is sought under one of the conditions set out in section 14 of the Act.

The public body to which the request is transferred should also acknowledge receipt of the request by writing to the applicant, using Model Letter A in Appendix 3.

Consultation

When a public body receives an access request and the request deals with records that originated in another public body, or deals with matters in which another public body has a direct interest, it should consult with that public body. This will ensure that all relevant factors are taken into consideration in deciding whether or not to disclose all or part of the records. A public body should also consult with another public body with respect to a request for correction in similar circumstances.

Two public bodies may deal with different aspects of the same matter or policy and may even disagree on policy directions or administrative actions to be taken. The public body receiving the request should ensure that the views of the other body have been taken into consideration in any decision to disclose or to refuse access to all or part of the records concerned.

If more than two public bodies are involved, the consultation process should ensure that all parties are aware of each other's views. Public bodies that regularly need to consult with other public bodies on disclosure in response to access requests may need to set out their procedures for consultation and decision-making in policy.

Section 11(1) of the Act provides that public bodies must make every reasonable effort to respond to a request no later than 30 calendar days after receiving it, unless

• the time limit is extended under section 14; or
• the request is transferred to another public body under section 15.

Every reasonable effort means the effort that a fair and rational person would expect to be made and would find acceptable. A public body's effort is expected to be thorough and comprehensive (see IPC Order 98-002).

If the request is incomplete and further information is required from the applicant in order to identify the records sought, a public body should seek this information immediately. The requirement to clarify the request does not change the date on which the time period commences, but may necessitate a time limit extension.

Deemed refusal (Section 11(2))

This provision of the Act clearly establishes that the failure by a public body to respond to a request within the 30-day time limit, or a time limit extended under section 14, can be treated by the applicant as a decision to refuse access to the record(s). Failure to respond to a request may be reviewed by the Information and Privacy Commissioner (see IPC Order 99-039).

Time limit extensions (Section 14)

This section of the Act provides authority for extending the time limit for responding to a request. The circumstances in which an extension is permitted are limited, and, in some cases, the permission of the Information and Privacy Commissioner is required. A public body may extend the time limit for responding by up to 30 days, allowing a total period of up to 60 days, in any of the following circumstances.

• The applicant does not give enough detail to enable the requested records to be identified. This may be because the request is vaguely worded or, for some other reason, the record is impossible to locate from the description provided. In this case, clarification is needed from the applicant.
• A large number of records are requested or must be searched, or a large number of records must be reviewed, and responding within 30 days would unreasonably interfere with the operations of the public body. This type of request will usually result in discussions with the applicant to try to narrow the scope of the search.
• More time is needed for the public body to consult with other public bodies, other levels of government, or third parties. This provision applies to third party consultations as required under section 30 of the Act (which may take up to 20 days), consultation with other governments under section 21 (for which there is no specified time limit), and consultation with other public bodies (where the public body has no legislated power to compel a timely response).

If a public body believes that it still cannot complete processing of the request within a 30-day extension period, the public body may ask the Commissioner for a longer extension.

Section 14(1)(d) allows for a time limit extension when a third party asks the Commissioner to review a head's decision on a request. In order to allow time for the third party to ask the Commissioner to review the decision, an additional 20 days may be required. For further information on time limit extensions related to the third party notice process, see FOIP Bulletin No. 10, Third Party Notice, published by Access and Privacy Branch, Alberta Government Services.

If a review by the Commissioner is requested by a third party, the information requested by the applicant must be withheld until the review is completed and any Order issued.

Section 14(3) allows the head of a public body to extend the time limit for responding to a request in accordance with individual provisions of the Act, without seeking the permission of the Commissioner, even if the cumulative effect of granting allowed extensions takes the time period beyond 60 days. This may occur if the need to consult with a third party is not recognized until late in the processing of a large request. In this case, the extension is needed to provide sufficient time to comply with the notification provisions of the Act (see IPC Investigation Report 2000-IR-001).

This provision also protects the rights of third parties to seek a review of any decision to release information about them.

The public body should consider all factors relating to the possibility of the need for a time limit extension before finally deciding to invoke one. Common factors include

• the amount and type of detail required from the applicant to clarify a request;
• the breadth and complexity of the request, the number of records requested, and the number of files that must be searched to find the requested records;
• the number and complexity of consultations required with external organizations, such as other public bodies or other levels of government;
• the quantity and type of records requiring review by other public bodies (public bodies are not third parties for the purposes of notices and time limits under sections 30 and 31; however, they may reasonably be expected to respond in a timely manner); and
• the amount of time needed for the Commissioner to deal with a request for review (the Commissioner's office should be consulted on this matter).

The public body should indicate to the applicant the specific subsection that it is relying upon for the time limit extension (see IPC Investigation Report 2000-IR-001).

The Act does not provide for extensions for other administrative reasons, such as

• consultations within the public body after the records have been located; or
• working conditions arising from sickness, staff absence or vacation, or staff workloads.

Limits on extensions

Public bodies should make every effort to plan the processing of complicated requests so that there is a need to invoke only one extension. A public body may, on its own authority and within the original 30-day time limit, extend the 30-day limit for another 30 days or less to enable the head to comply with the requirements of section 31.

Although it may not always be possible, if a public body is able to determine that it will take 90 calendar days to process a request, it should request permission from the Commissioner, within the 30-day original time period, to extend the response time for 60 calendar days (30 original days + 60 day extension = 90 days).

A letter requesting an extension by the Commissioner should set out the specific reasons why a period greater than 60 days is required to process the request. The letter should propose a reasonable period of days for producing a response.

Normally, if a public body has already taken a 30-day extension under its own authority, it should not seek a further extension from the Commissioner. However, this may be done in exceptional circumstances, where complications not originally contemplated when planning the response process arise. An example might be where a public body has already claimed an extension of 30 days because of the need for extensive consultation. On the 45th day, as a result of that consultation, it discovers additional records that have to be searched and from which responsive records will be retrieved. In this case, the public body would request the permission of the Commissioner to extend the period for response to the applicant.

Section 14(2) of the Act also provides for a public body, with the Commissioner's permission, to extend the time limit for responding to a request in the following circumstances:

• multiple concurrent requests are made by the same applicant, or
• two or more applicants who work for the same organization, or who work in association with each other, make multiple concurrent requests.

This provision acknowledges the difficulty that a public body may have if one or more applicants make a number of requests at the same time.

Section 14(2) recognizes that the same factors set out in section 14(1) can apply when several requests are made at the same time, even though no single request would present such difficulties. This provision applies to any time limit extension, even if only an additional 30 days are required.

The public body should refer to section 14(1) when requesting an extension from the Commissioner. If the Commissioner refuses to grant a time limit extension under section 14(2), the public body may consider each request separately to determine whether an extension is needed. When the Commissioner refuses to grant permission for an extension under section 14(1) or (2), the public body has a maximum of 60 days to process the request.

Documentation

Public bodies must document the reasons for a time limit extension. This is required to support the public body's decision to extend, for a request to the Commissioner for an extension of more than 30 days, and in case of a complaint by the applicant to the Commissioner.

Notification (Section 14(4))

This provision of the Act requires a public body to notify the applicant that an extension is being taken, the reason for it, the date when a response can be expected, and that the applicant has the right to make a complaint to the Information and Privacy Commissioner about the extension.

Model Letter D in Appendix 3 deals with time extensions. This notice is required as soon as it is apparent that the request cannot be processed within the initial 30-day time period.

When a request for an extension is made to the Commissioner, the notice should be sent to the applicant before the Commissioner's final decision has been made as to whether or not the extension will be granted.

After investigating a complaint about a time limit extension, the Commissioner may either confirm or reduce the extension, as provided in section 72(3)(b).

Impact of third party notice on response times

When a public body gives notice to a third party under section 30, the deadline for a final response to an applicant must take into account the time required to allow the third party to respond. No decision may be made before either 21 days after the day notice is given or the day a response is received from the third party, whichever is earlier. The public body should notify the third party as soon as possible after receiving a request in order to minimize the delay in responding.

Giving a third party notice is discussed in Chapter 5 of this publication.

Day of response

Under Alberta's Interpretation Act, if the day a response is due falls on a holiday or a day when the office of a public body is closed, then the response is due on the next business day. For example, a third party has 20 days to request a review by the Information and Privacy Commissioner after the public body has notified it of a decision to grant access to records affecting the third party. If the 20th day falls on a Sunday, the third party would have until the next business day (Monday) to request a review. The public body could not release the records that were the subject of the third party notice to the applicant until the following day (Tuesday).

The head of the public body is responsible for determining whether the office that is authorized to handle requests is closed. For example, a school board is still responsible for processing requests when offices of the administration are open but individual schools are closed. A process must be established in such cases to ensure records are retrieved.

If a public body, such as a small municipality, completely closes its office for staff vacations, then the completion of the request will be affected and may not commence until the first working day after the office reopens.

In responding to FOIP requests, it is important that a public body clearly assign responsibilities for the various processing steps. This section outlines the assignment process and describes the responsibilities of program areas in a decentralized organizational model, where retrieval and review of records is performed in program areas and the office of the FOIP Coordinator carries out management of the final decision-making. In a centralized model, the office of the FOIP Coordinator will carry out all the duties outlined in this chapter. (Conducting an adequate search for responsive records in relation to a public body's duty to assist under section 10(1) is discussed in section 3.2 of this chapter.)

Public bodies should develop procedures to govern the processing of requests and to ensure that processing occurs within established time limits and in accordance with the requirements of the Act. Public bodies should also create and retain documentation on their processing of requests. The forms provided in Appendix 5 of this publication may be used or adapted for this purpose.

Model FOIP Request Charts are provided in Appendix 4.

Initial control

Once a request is received in the office of the FOIP Coordinator, it should be registered and logged (this is done electronically if an automated tracking system is in use). The request should then be placed in a request file and details of the request forwarded to any program area that may have custody or control of requested records.

The office of the FOIP Coordinator can record this assignment of responsibility on the request tracking system.

The request should be accompanied by a FOIP Transmittal Memorandum and Access Request Processing Summary for recording all activities and the time involved in processing the request, in order to document these activities and assess the appropriate fees. A model FOIP Transmittal Memorandum and an example of an Access Request Processing Summary are included in Appendix 5 of this publication.

The identity of the applicant should be disclosed only

• to those officials and employees of the public body who have a need to know it in order to carry out their job duties; and
• to the extent necessary to carry out the public body's functions in processing the applicant's request.

For instance, where the request is for general records, the FOIP Coordinator should forward only the request for records and not the name of the applicant or other identifiers to program areas within the public body (see IPC Investigation Report 98-IR-009 and IPC Order 99-021).

An access request contains recorded information about an identifiable individual. The personal information of the applicant can be disclosed to another employee of the public body only if the employee has a need to know that information (see IPC Order 2000-023).

Locating records

The program area is normally responsible for locating and retrieving all records relevant to a request under its custody or control. In some cases, this may include retrieving records in individual employees' offices, vehicles or homes, in filing systems in storage areas or in the possession of contracted agencies. The program area should draw on the support of records and information management staff in providing the indexes and guides to appropriate records, where these are available, and to locate records.

Speed and accuracy are essential in identifying, locating, retrieving and, where appropriate, copying records pertinent to a request (where a request is for a large number of records, it may be appropriate that copies are not made immediately). A rule of thumb for a basic, uncomplicated request involving the coordination of staff in different areas is that at least four working days are needed to pull together the working program file, with the pertinent records that need to be reviewed.

Scope of search

A public body must make a reasonable effort to identify and locate records responsive to the request (see IPC Order 2000-030).

A public body must be prepared to support claims for the adequacy of a search with evidence as to how the public body conducted its search in the particular circumstances (IPC Orders 98-003 and 2000-030).

Staff in search locations should be told to keep track of and report on the amount of time spent on locating and retrieving records. If the search is expected to involve a large number of hours, the FOIP Coordinator should be notified. The FOIP Coordinator may want to contact the applicant to discuss whether the scope of the request, and resulting fees, could be reduced.

Disposition of records

This includes any e-mail and transitory records relevant to the request that may exist at the time the request is received. In effect, the receipt of a FOIP request freezes all disposition action relating to records responsive to the request until the request has been completed and any appeal to the Commissioner decided.

For continuing requests, disposition action freezes at the point when the request is reactivated in accordance with the agreed schedule.

The file transmitting the request to the program area should include a reminder that it is an offence to destroy any record, or to direct another person to do so (section 92(1)(g)), or to alter, falsify or conceal any record, or to direct another person to do so (section 92(1)(e)) in order to evade a request for access to records. These offences are punishable by a fine of up to $10,000.

Where records have been destroyed prior to the receipt of a request, in accordance with an approved records retention and disposition schedule, the public body's response to the applicant should indicate that the records have been destroyed, quoting the relevant destruction certificate numbers for the records (see IPC Order 99-021).

Copying retrieved records

Once the records have been located, either the program area or the office of the FOIP Coordinator, as appropriate, should prepare them for review and complete the request documentation. In cases where the request is very clear, this may involve the copying and numbering of all records pertinent to the request. Where the request is less clear, or where there are a large number of records, it may be appropriate to defer any copying until after the preliminary assessment by the FOIP Coordinator. The documentation should include

• a list of all records areas searched;
• a list of the records located in each records area, along with identifying data and parts of file lists, data dictionaries or other finding aids used in locating the records; and
• a log of staff time spent searching for and retrieving the records.

Preliminary assessment

There are a number of administrative matters that the FOIP Coordinator should consider very early in the request process, but after the program area has had an opportunity to consider the extent and nature of the request and to locate the records. This discussion will assist in the preliminary review of the records, which will be done either by the FOIP Coordinator or, in larger organizations, by the office of the FOIP Coordinator in cooperation with the program contact and representatives knowledgeable about the subject matter and records involved.

There are a number of questions to consider at this stage.

• Does it appear that all relevant records, including electronic records, have been located and do they appear to satisfy the request?
• Are there any records referenced in the request or the located records, such as attachments, that have not yet been located?
• Are any of the records excluded from the scope of the Act under section 4 or subject to other legislation that prevails over the FOIP Act?
• Can the records, in whole or in part, be released immediately without line-by-line review?
• Should all or a portion of the request be transferred to another public body that produced the record, was the first to obtain the record, or has the record in its custody or under its control? (See section 3.2 of this chapter for information on the legislative requirements and policies relating to the transfer of requests.)
• Does it appear that records may be found in program areas other than those already identified, and should the search be widened?
• What is the extent and nature of consultation required with other program areas within the public body? Responsibility for ensuring that these consultations occur should be clearly assigned.
• What is the extent and nature of external consultation required with other public bodies and levels of government? Responsibility for conducting these consultations should also be clearly assigned.
• Do the records contain third party business information or personal information that may require third party notification?
• Will the time required to respond to the request likely exceed the 30-day time limit? Are there grounds for an extension of the time limit?
• Will fees in addition to the initial fee (if applicable) be assessed for the processing of the request?

From this preliminary review, the FOIP Coordinator may, depending on the level of delegation, either recommend or undertake actions related to

• the transfer of all or part of the request;
• the immediate release of all or some of records;
• the extension of time limits;
• third party notification; or
• the assessment of fees.

Each of these activities involves a notice to the applicant. Notices are considered in this publication as follows:

• disclosure of a record in response to an access request is discussed in section 3.8 of this chapter;
• extension of time limits is discussed in section 3.3 of this chapter;
• third party notification is discussed in Chapter 5;
• transfer of requests is discussed in section 3.2 of this chapter; and
• assessing fees is discussed in section 3.5 of this chapter.

Notices

Various notices are required under the Act. Of particular importance are those that are sent

• to inform an applicant of a fee estimate;
• to report to an applicant about the progress of a request (e.g. any extension of the time limit for responding);
• to notify a third party (a business or an individual) that information provided by the third party or personal information about the third party has been requested, and that an opportunity is being provided for comment on whether the information should be disclosed; and
• to advise the applicant of the decision on the disclosure and, if access is being granted, provide information about access to the requested records.

Section 83 of the Act provides for the manner of giving notice. Section 83 is discussed in Chapter 2.6.

The Model Letters in Appendix 3 provide examples and options for all the notices required under the Act.

The FOIP Act allows public bodies to charge fees to help offset the cost of providing applicants with access to records. The Act provides for a fee structure that is intended to support effective provision of FOIP services.

Section 93 establishes that

• a public body may require an applicant to pay fees for services as provided for in the FOIP Regulation (section 93(1));
• for personal information, fees are restricted to the cost of providing a copy of the information (section 93(2));
• if fees are required under section 93(1), an estimate of the total fee must be prepared by the public body for the applicant before providing the services (section 93(3));
• an applicant may, in writing, request the head of a public body to excuse the applicant from paying all or part of the estimated fees (section 93(3.1));
• the public body may excuse an applicant from paying all or part of a fee if, in the opinion of the head of the public body
  • the applicant cannot afford the payment or for any other reason it is fair to excuse the payment; or
  • the record relates to a matter of public interest, including the environment or public health or safety (section 93(4));
• the decision of the head of a public body on a fee waiver request must be communicated in writing to the applicant within 30 days of receiving the request for a fee waiver (section 93(4.1));
• the fees referred to in section 93(1) must not exceed the actual costs of the services provided.

Section 95(b) enables local public bodies to establish their own fee structures provided they follow section 93 of the Act and do not exceed the fee structure set out in the FOIP Regulation. This must be done through a bylaw or, where applicable, other legal instrument by which the local public body acts.

Fees for general records

Section 10(2) and Schedule 2 of the FOIP Regulation set out the maximum fees that may be charged for processing a general access request.

• locating and retrieving a record;
• producing a record from an electronic record;
• preparing a record for disclosure (to cover the time taken to physically sever the record);
• providing a copy of a record;
• creating a new record under section 10(2) of the Act; and
• supervising the examination of an original record.

No fee may be assessed for time spent in reviewing a record to determine whether or not all or part of it should be disclosed.

If new records have to be created from an electronic record, the public body may use acceptable industry standards to ensure accuracy and completeness of the records, process the information according to its usual procedures, and charge for these services as a part of its fee. If the public body uses a reasonable process, there is no obligation under the Act to change the process simply because an applicant believes a faster or more efficient method to complete the task may exist.

In the event of a review by the Commissioner, the public body has the burden of proving that it has reasonably calculated the fee estimate (see IPC Orders 99-014 and F2002-005).

The fee provision is discretionary, but normally fees will be assessed for all general requests under the Act. Fee waiver provisions are set out in section 93(4) of the Act. The FOIP Regulation sets out the schedule of maximum fees that may be charged. Public bodies may choose to charge less than these rates, but not more.

A person who makes a request for access to a general record that is not a record of the applicant's own personal information is required to pay

• an initial fee of $25.00 at the time that a one-time request is made; or
• an initial fee of $50.00 when a continuing request is made.

This initial fee covers the work involved in registering the request, locating and retrieving records, and, in some instances, providing access to records. For simple, straightforward requests involving a small volume of records, it will be the only fee paid. For complex requests or requests involving a large volume of records, the initial fee would probably only cover the preparation of a fee estimate. Additional fees will likely be required.

No additional fees are charged unless the amount of fees required to process the request for general records, as estimated by the public body to which the request has been made, exceeds $150.00. When the amount estimated exceeds $150.00, the total amount is charged to the applicant.

Fees for personal information

Section 11 of the FOIP Regulation establishes fees to be charged to an individual for accessing his or her own personal information.

In the case of a request for an applicant's own personal information, an applicant will pay only copying fees, and then only when those fees exceed $10.00, as determined by the public body in accordance with the rates established in Schedule 2 of the FOIP Regulation. Subject to the fee waiver provision (section 93(4)), when the fee exceeds $10.00, the total amount will be charged to the applicant.

Note the discussion on assessing fees when dealing with requests that contain both personal information and health information under the Health Information Act. For more information on requesting access to health information, see section 3.2 of this chapter.

Fee estimates

Section 12 of the FOIP Regulation governs the provision of fee estimates under the Act.

When a public body provides a fee estimate to an applicant in accordance with section 93(3) of the Act and section 12 of the FOIP Regulation, the following costs should be included:

• the time required and cost of locating and retrieving the record;
• the time required and cost of preparing the record for disclosure;
• the cost of copying the record;
• any computer time involved in locating and copying a record or reprogramming to create a new record, as appropriate;
• supervision costs when an applicant wishes to examine the original record; and
• any costs for shipping records to another location for examination or for shipping copies of records directly to the applicant.

In the case of a request for access to a record of the personal information of the applicant, the public body must only include the cost of copying the record.

In the case of continuing requests, the estimate must include the total fees payable over the time span of the continuing request (see IPC Order 97-019).

The notice to the applicant about fees should include

• a request that at least 50% of the estimate be paid in advance of the request being processed, or in the case of continuing requests, a request that at least 50% of the estimate for the first instalment be paid in advance of the request being processed;
• a statement that the applicant has 20 days to inform the public body that the estimate is accepted and to pay the deposit; and
• a statement that the applicant has the right to ask the head of the public body to excuse all or part of the fee and may request a review by the Information and Privacy Commissioner if the fees are considered too high or otherwise inappropriate, or if a request for a fee waiver has not been granted.

Model Letter E in Appendix 3 may be used to provide this notice. The notice gives the applicant the basis on which to accept the fees or take other action. The applicant might narrow the request, review original records, which would incur supervision costs but would cut down on copying costs, seek a fee waiver, or request a review of the fees by the Commissioner under section 65(1) or section 53(2).

No further processing takes place until one of the following events occurs:

• a letter from the applicant agreeing to the charges and attaching payment of the deposit is received in the authorized office (the applicant has up to 20 days to accept the fee estimate);
• written notification from the applicant modifying the request, and establishing a new basis for assessment of fees, is received in the authorized office;
• the public body agrees to a request for a fee waiver; or
• the Commissioner carries out a review and decides whether the fees are appropriate, or whether the head of the public body has appropriately exercised his or her discretion regarding a request for a waiver of fees, as applicable.

An applicant has up to 20 days to indicate whether or not the fee estimate is accepted. The applicant may choose to modify the request so as to change the amount of fees assessed. If no response has been received after 30 days, the public body may declare the request abandoned (see section 3.6 of this chapter).

More detailed guidance on estimating fees is provided in FOIP Bulletin No. 1, Fee Estimates, published by Access and Privacy Branch, Alberta Government Services.

Deposits and payment of fees

Processing of a request ceases once a notice of estimate has been forwarded to an applicant and recommences immediately upon

• receipt of an agreement to pay the fee; and
• receipt of at least 50% of any estimated fee that exceeds $150.00 (FOIP Regulation, section 13(1)(a)) or, in the case of a continuing request, receipt of at least 50% of the portion of the estimate applicable to the delivery of the instalment of the request to be processed (FOIP Regulation, section 13(1)(b)).

The balance of any fee owing is payable at the time the records are provided to the applicant (FOIP Regulation, section 13(2)).

If the amount paid is higher than the actual fees required to be paid, the balance paid will be refunded. The initial fee is not refunded in these circumstances (FOIP Regulation, section 13(3)).

Local public bodies should arrange for fees paid under the Act to be handled in the same way as other revenue.

Excusing or waiving fees

Section 93(4) provides that a public body may excuse the applicant from paying all or part of a fee (i.e. grant a fee waiver) if, in the opinion of the public body

• the applicant cannot afford the payment or for any other reason it is fair to excuse payment; or
• the record relates to a matter of public interest, including the environment or public health or safety.

Normally, an applicant will take the initiative in requesting a fee waiver, usually at the time of submitting the request itself. A public body must consider the request for a fee waiver from an applicant at the time it is made. If a request for a fee waiver is part of the FOIP request, the public body will consider it when it is preparing a fee estimate and decide whether or not the request meets any of the criteria for excusing fees and, if it does, whether or not a fee waiver is merited.

An applicant must make a request for a fee waiver in writing (section 93(3.1)).

If an applicant has requested a fee waiver, and the public body does not grant it, the public body must notify the applicant that he or she may ask the Commissioner for a review of this decision (section 93(5)).

The decision of the head of a public body concerning a request for a fee waiver must be communicated in writing to the applicant within 30 days of receiving the request for a fee waiver (section 93(4.1)).

The Commissioner may conduct a review of the decision by the head of the public body under section 65(1). Section 72(3)(c) enables the Commissioner to make a fresh decision on fees in the appropriate circumstances, for example, where new evidence not available at the time of the public body's decision is presented by the applicant at an inquiry (see IPC Order 2000-008).

Grounds for excusing fees

Section 93(4) establishes the criteria for excusing payment of all or part of a fee.

Applicant cannot afford to pay (Section 93(4)(a))

The head may excuse payment if the applicant cannot afford the payment. The onus of substantiating financial hardship falls on the applicant (IPC Order 96-002). The applicant may be required to supply documentation of income and expenses (IPC Orders 99-012 and 2000-011).

The public body should assure the applicant of the confidentiality and security of financial information submitted to the public body in support of a fee waiver request.

When making a decision on grounds of financial hardship, a public body may take into consideration a range of factors, including the scope of the request and amount of the estimated fee; whether the applicant is prepared to pay a portion of the fee; and whether the applicant is willing to work with the public body to narrow the scope of the request and to accept other options.

Other reasons why it is fair to excuse payment (Section 93(4)(a))

The head of a public body may excuse the applicant from paying all or part of a fee if, in the opinion of the head, it is fair to excuse the payment for any reason other than financial hardship.

Section 93(4)(a) may also be used by a public body when it wishes to grant a fee waiver on its own initiative.

The reasons to excuse fees on grounds of fairness may relate to any number of matters. The following are some examples of circumstances where the fees may be waived on grounds of fairness.

• The public body has assessed fees where the records provide little or no information (see IPC Order 99-027).
• The public body has failed in its duties in processing the access request, for example, by conducting an inadequate search for records or allowing undue delay (see IPC Order 99-039).
• More than one applicant made the same or a similar request at around the same time, and it would not be fair for the public body to collect the total estimated amount of fees from both applicants or to charge the first applicant substantially more than the second (see Adjudication Order 2).
• The information requested is important to bring closure to issues and concerns that have been outstanding between the public body and the applicant for a long time (IPC Order 2001-042).

Some of the following factors may also be relevant to a decision on fairness.

• The records are critical for the applicant to exercise his or her rights, or are directly related to an individual's personal financial or health management.
• A person has a legitimate reason to request the personal information of another individual, but cannot exercise that individual's rights under section 84 (if the individual requested the information the request would be subject to copying fees only).
• If the public body set aside the fees associated with records that would likely be withheld, the fee would be likely to fall below the $150 threshold, or marginally above the threshold.

Record relates to a matter of public interest (Section 93(4)(b))

The head of a public body may excuse the applicant from paying all or part of a fee if, in the opinion of the head, the record relates to a matter of public interest, including the environment or public health or safety.

The concept of public interest has been explained in a number of Commissioner's Orders (IPC Order 96-002; reiterated in IPC Orders 2001-023 and F2003-011). The term “public” may be applied to everyone and anyone. The term “interest” can range between the sense of individual curiosity and the notion of interest as a benefit. The Commissioner has reasoned that the weight of public interest depends on a balancing of the relative weight afforded to curiosity and benefit, and to a broad versus a narrow public. The Commissioner has also said that public interest is not confined to environmental and public health and safety issues.

It should be noted that the criteria for determining public interest under section 93 are not the same as for the Act's provision for disclosure in the public interest (section 32(1)(b)). Section 32(1)(b) overrides all other provisions of the Act, including its provisions for the protection of personal privacy. Public interest in section 32(1)(b) must be narrowly interpreted, limited to compelling public interest. Section 93(4)(b), on the other hand, is intended to support access rights, and is therefore interpreted more liberally. (See IPC Orders 98-011, 98-019 and 2000-031.)

This category of fee waiver generally covers situations where there is a public interest in disclosing all or part of a record. This occurs when the information is likely to contribute significantly to public understanding of the operations or activities of the public body, or is of major interest to the public including the environment or public health or safety.

In IPC Orders 96-002 and 97-001, the Information and Privacy Commissioner listed thirteen “criteria” which may be taken into account when considering a fee waiver in the public interest. The criteria do not constitute a test, but rather set out points or questions that may help public bodies in considering waivers in the public interest.

The Commissioner's questions relating to a waiver in the public interest are:

• Is the applicant motivated by commercial or other private interests?
• Will members of the public, other than the applicant, benefit from disclosure?
• Will the records contribute to the public understanding of an issue (that is, will they contribute to open and transparent public administration)?
• Will the disclosure add to public research on the operation of the public body or its responsibilities?
• Has access been given to similar records at no cost?
• Have there been persistent efforts by the applicant or others to obtain the records?
• Would the records contribute to debate on issues of public interest or to their resolution?
• Would the records be useful in clarifying public understanding of issues that fall within the mandate of the public body?
• Do the records relate to a conflict between the applicant and the public body?
• Should the public body have anticipated the need of the public to have the record?
• How responsive has the public body been to the applicant's request? For example, were some records made available at no cost or did the public body help the applicant narrow the request so as to reduce costs?
• Would the waiver of the fee shift an unreasonable burden of the cost from the applicant to the public body, such that there would be significant interference with the operations of the public body?
• What is the probability that the applicant will disseminate the contents of the record?

Public bodies should consider these questions when exercising their discretion whether or not to waive or reduce fees. A public body may ask an applicant requesting a fee waiver in the public interest to provide information relating to any of the points that appear relevant to the records under consideration.

Section 93(4)(b) requires a public body to form an independent opinion about whether a record relates to a matter of public interest (see IPC Order 2001-023). A public body could determine, after considering all relevant facts and circumstances and the principles and objects of the Act, that a record relates to a matter of public interest, even though the applicant may have failed to establish a public interest in the record (IPC Order F2003-011).

If the Commissioner conducts a review of a decision not to grant a fee waiver in the public interest, the public body may find it helpful to show that it applied these criteria in making its assessment.

Fee waivers are discussed in more detail in FOIP Bulletin No. 2, Fee Waivers, published by Access and Privacy Branch, Alberta Government Services.

Often, it is clear when an applicant has decided not to pursue a FOIP request. Applicants will indicate either in writing or on the telephone an intention not to proceed with the request. This may be for a variety of reasons. For example, they have found that the information is available to them outside the FOIP process or they no longer need the information.

Sometimes situations will arise where an applicant simply ceases to respond during the processing of a FOIP request. No indication is given that the applicant has decided not to pursue the request. He or she simply does not respond to queries from the public body.

When this latter situation occurs, section 8 of the Act sets out provisions for declaring a request abandoned. The public body must have contacted the applicant in writing and either sought further information that is necessary to process the request or requested payment of or agreement to a fee.

If the applicant does not respond within 30 days of being contacted, the public body can advise the applicant, again in writing, that the request has been declared abandoned. A specific date for this declaration should be included in the notice. This notice must state that the applicant can ask for a review by the Commissioner of the decision. In most cases, abandonment of a request occurs before processing of the request is completed. However, in some cases, an applicant abandons a request after processing is completed.

If the public body has responded to the applicant's request, stating where, when and how access will be given; and has requested that the applicant contact the public body about viewing the records, and the applicant does not respond within 30 days, then the public body can advise the applicant that the request has been declared abandoned. The procedure outlined above will apply to such requests.

It is good practice for a public body to keep the file active for a further 60 days in order to allow time for the applicant to request a review by the Commissioner.

Model Letter F in Appendix 3 deals with this type of situation.

Line-by-line review of records

Once the preliminary assessment has been completed, the various administrative matters have been sorted out and any necessary consultations are under way, a knowledgeable staff member from the program area or, in centralized systems, the office of the FOIP Coordinator, will need to review the documents line by line.

A line-by-line review is essential to comply with the principle of severability set out in section 6(2) of the Act. This provision grants an applicant a right of access to any record from which excepted material can be reasonably severed. Chapter 4 of this publication deals with the guidelines for the application of the exceptions to the right of access.

With input from the program or business unit responsible for the records, the reviewer should be able to offer a perspective on any harm that may result from release of particular information and identify factors to be taken into consideration when exercising discretion to release or refuse access to the information. During a line-by-line review, the office of the FOIP Coordinator may identify additional requirements with respect to third party notices or consultations.

Documentation

The reviewer should document exceptions to be invoked, actions to be taken, reasons for each decision, and recommendations for responding to the request.

A model Access Request Processing Summary is provided in Appendix 5 of this publication. Public bodies may adapt this form for their internal use.

Thorough documentation at this stage will ensure that the public body has the information required to assess recommendations from the program area and to formulate final decisions relatively quickly. It minimizes duplication of effort and ensures that the public body is in a position to explain decisions both to the applicant and to the Information and Privacy Commissioner, if there is a request for a review.

Reviewer's recommendations