Processing Access Requests Workshop “In the Door, Out the Door”

1. Processing AccessRequests Workshop“In the Door, Out the Door” Note: These slides are from a workshop first delivered by the Access and Privacy Branch, Ministry of Justice and Attorney General of Saskatchewan in 2006 and 2007. The workshop is for employees responsible for processing access requests received pursuant to FOIP or LAFOIP. These slides are for information purposes only. Please refer to the legislation for purposes of interpretation.

2. Please read first • These slides are taken from an Access and Privacy Branch workshop targeted at access officials in government institutions and local authorities in Saskatchewan subject to The Freedom of Information and Protection of Privacy Act and The Local Authority Freedom of Information and Protection of Privacy Act. • The workshop is designed to assist officials responsible for processing access requests received under the Acts. • The information in these slides is for training purposes only and is often shortened to headers, etc. It should not be relied upon for legal interpretation. Please consult appropriate legislation and, as required, legal counsel for full interpretations of the Act.

3. Agenda • Part I – Background Information • Part II – First Steps after Receiving An Access Request • Workshop Exercise One • Part III – Processing the Request • Workshop Exercise Two • Part IV – Records Review and Exemptions • Workshop Exercise Three • Part V – Finalizing the Request • Part VI – Closing and Questions

4. Objectives of workshop • Provide an overview of processing an access request from date of receipt to finalizing the request. • Three hands-on exercises. • Share experiences & answer questions.

5. Terms used in presentation…

6. PART I: Background Duty to Assist Right of Access What is a record? Formal Requests

7. Justice LaForest, Supreme Court of Canada “The overarching purpose of access to information legislation—is to facilitate democracy. It does so in two related ways. It helps to ensure first that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.” Justice LaForest [1997] 2 S.C.R. 403 Dagg v. Canada (Minister of Finance)

8. FOIP:Rights of Access • FOIP and LAFOIP provide every person a right of access to records in the possession or under the control of a provincial government institution or a local authority, subject to certain exemptions. • See sections 5 of FOIP and 5 of LAFOIP

9. FOIP:Definition of Record • Section 2(1)(i) of FOIP and 2(j) of LAFOIP define a record as: • “…a record of information in any form and includes information that is written, photographed, recorded or stored in any manner, but does not include computer programs or other mechanisms that produce records.”

10. documents letters handwritten notes papers draft documents e-mails sticky notes journal books calendars vouchers maps (non-published) drawings photographs Examples of Types of Records

11. FOIP:Duty to Assist • The Office of the Information and Privacy Commissioner (OIPC) has concluded that public bodies have a duty to assist all applicants when they apply for access to records. • This can include: • working with the applicant to identify what records they actually would like to access; • offering options when an access request will result in a large estimate of costs; and • not defining access requests too narrowly. • See OIPC Report Numbers: • F-2004-003, F-2004-005

12. FOIP/LAFOIP is Not Always Necessary • Encourage informal disclosure when appropriate. • FOIP/LAFOIP are formal processes – informal may be more appropriate.

13. Recognizing a formal request • There are two types of formal requests: • Access to Information Request form • Written requests (not on the formal Access to Information Request form)

14. Recognizing a formal request - Access to Information Request Form • Form “A” in the FOIP Regulations and Form “A” LAFOIP Regulations • Application form asks for: • contact information of applicant; • public body request is directed to; • name of the record; and • details of the information being requested. • Application Fees: • No application fee under FOIP • $20 application fee under LAFOIP • See next two slides for prescribed forms

17. Recognizing a Formal Request - Written Requests (Not on Formal Application Form) • If it’s apparent the applicant is intending to file a formal access request, you should accept it as a formal access request. • Language to look for: • freedom of information request • access to information request • request under The Freedom of Information and Protection of Privacy Act • If written request meets “Form A” requirements, accept the request as a formal request. Request should include: • contact information of applicant; • government institution request is directed to; • name of the record; and • details of the information being requested. • The Office of the Information and Privacy Commissioner (OIPC) will expect that these types of requests are accepted and fall within our duty to assist the applicant.

18. You only have 30 Calendar Days • The clock starts ticking the day after it’s received in your government institution – all employees should be aware of this. • See section 7(2) of FOIP and LAFOIP, and section 24(3) of The Interpretation Act, 1995 • If the due date falls on a weekend or holiday, it moves to the next working day. • See section 24(1) of The Interpretations Act, 1995 • See appendices: • Help With FOIP!! Access Request Checklist • FOIP / LAFOIP Process (Flow Chart)

19. What’s been discussed so far… • Individuals have the right to access the records of public bodies. • What is a record and examples of a record. • We have a duty to assist applicants. • An access request is not always necessary. • How to recognize a formal access request. • There are important timeframes that must be followed.

20. PART II: First Steps after Receiving an Access Request Search Heads up Set up file Log the Request

21. First Steps • You’ve got a request – where to start? • Log the request. • Set up a file. • Provide “heads up”. • The search should begin for the responsive records.

22. First Steps:Logging the Request & Set up a File • Access Requests should be logged and have a file. • The file should contain all correspondence relevant to the Access Request. • See Appendix: Help with FOIP!!! Access to Information Requests: Logging and File Set Up JU01/07G Access Request File

23. First Steps:Providing a “Heads Up” • A “heads up” e-mail may have the following audience. Your process may routinely include: • Deputy Minster’s Office, President’s Office • Access Officer • Communications • Division Head responsible for information being requested • Branch Head or Program Manager responsible for the information being requested • In addition, the Access and Privacy Branch receives the “Pink” copy (or a photocopy) of the access request. • Not applicable to Local Authorities.

24. First Steps:Heads Up - Things to remember • The applicant’s name is usually personal information • “Heads up” with the applicant’s name should be on a need-to-know basis: • Share the applicant’s name only as needed to process the request (e.g. – you will need to share the name with the program staff who need to find personal information requested by the applicant). • Protect the applicant’s identity where appropriate. • Retain documentation of how the “heads up” was communicated (e.g. – copy of the request, an e-mail outlining the details of the requested information). • Heads up should be provided when the request is received.

25. First Steps:Beginning the Search • Identify the area(s) of your government institution most familiar with the records being requested. • Discuss the request with branch/program area.

26. First Steps:Access Requests are Serious • You may need to remind everyone of the serious nature of these requests. • Public bodies have an obligation in law to respond to the applicant. • Ask questions along the way to ensure appropriate steps are being taken: • Are fee estimates accurate? • Were all responsive records identified? • Did you search everywhere for responsive records? • Is there anything you can’t find? • Are the search efforts documented in detail? • Deadlines are important.

27. Day One: What should have been accomplished? • The request should be logged. • The file should be set up. • “Heads up” should be provided. • The search should begin for responsive records.

28. Workshop Exercise One • Receiving an access request: • assigning a file number; • logging the request; and • determining what positions should be provided with a heads up. • See handouts.

29. PART III: Processing the Request

30. 29 Days Left – no need to rush, right? • WRONG! • Did you know that in 30 calendar days there are approximately 20 work days. Then you need to factor in EDO’s, SDO’s, STAT holidays, vacation. • YIKES – Better get to it!

31. Next Steps:Further Discussions • Discuss access request with area responsible for responsive records. • Are the details of the request clear or will clarification be necessary? • Will fees be necessary to process the request? For example: • there will be a lot of work involved; • there will be a large search to locate the responsive records; and/or • there will be costs to reproduce the responsive records (e.g. photocopying, copies of photographs). • These questions will need to be answered right away.

32. Are the details of the request clear? • “An applicant shall specify the subject matter of the record requested with sufficient particularity as to time, place and event to enable an individual familiar with the subject matter to identify the record.” • See section 6(1)(b) of FOIP and 6(1)(b) of LAFOIP. • If the records cannot be identified, clarification will be necessary.

33. When clarification is necessary • “Where the head is unable to identify the record requested, the head shall advise the applicant, and shall invite the applicant to supply additional details that might lead to the identification of the record.” • See sections 6(3) of FOIP and 6(3) of LAFOIP. • When it is determined clarification is necessary ask yourself what additional details are required to help identify the record, then pick up the phone or write a clarification letter. • Document phone call and follow up in writing. • Sample clarification letter included in Model Letters package. • The clock stops when you ask for additional details. • “Where additional details are invited to be supplied pursuant to subsection (3), the application is deemed to be made when the record is identified.” • See sections 6(4) of FOIP and 6(4) of LAFOIP.

34. Wait a second…these aren’t even our records! • An application can be transferred within 15 days of receipt if it is determined another public body has a greater interest in the records being requested. • LAFOIP provides for a transfer to another local authority or government institution; • FOIP provides for a transfer to another government institution. • See sections 11(1)(a) and (b) of FOIP and 11(1)(a) and (b) of LAFOIP. • Greater interest in a record is determined if: • the record was originally prepared in or for the public body; or • the public body was the first to obtain the record or a copy of the record. • See sections 11(2)(a) and (b) of FOIP and 11(2)(a) and (b) of LAFOIP • Consider contacting the applicant prior to transferring the application. • Sample transfer letter included in Model Letters package.

35. Identifying the record:Locating the responsive records • Once details of the requested information is clear – locate the records. • This may include: • searching electronic records (e.g. - e-mails, databases); • searching files (e.g. – central filing cabinets, files in offices); or • searching offsite or secondary storage facilities (e.g. - Government Services Records Centre, storage rooms, boxes in basements).

36. You said “What’s a record?” • A record includes anything received or produced by you in the course of your work. • This includes: • sticky notes • e-mails • draft documents • handwritten notes • black journals/meeting books • etc, etc, etc…

37. There sure are a lot of records… • Some activities involved in complying with the request may include: • gathering records • providing third party notification • copying records • severing records • This is going to take a lot of time and money. • You may need to consider: • providing the applicant with an estimate of costs; and/or • extending the response period for the application.

38. When fees are necessary to process the request • Determine how big the request is. • Ask those familiar with the requested information what it will take to comply with the request. • Does the request involve a lot of records? • Will a search be necessary? • How many copies will there be? • Decide early if the estimate of costs will be necessary. • LAFOIP requires a $20.00 application fee. • see section 5(1) of the Regulations.

39. Fees for access / waiver of fees • Public bodies can charge fees for access. • Sections 9 of the FOIP Act and 9 of the LAFOIP Act • The fee schedule can be found in the regulations. • Sections 6 of the FOIP Regs and section 5 of LAFOIP Regs • Fees for access must be charged, but can be waived. See sections: • 9(5) of the FOIP Act and 9 of the FOIP Regs • 9(5) of the LAFOIP Act and 8 of the LAFOIP Regs

40. When fees are necessary - estimates • If fees will exceed $50.00, a cost estimate is necessary and the total fees charged cannot exceed the initial estimate of costs. • FOIP - sections 9(2) of the Act and 7(1) of the Regs. • LAFOIP – sections 9(2) of the Act and 6(1) of the Regs. • Consider providing the applicant with an estimate letter or heads up if the fees will be less than $50. • A public body can require a deposit of up to 50% of the estimate • FOIP - section 9(4) of the Act • LAFOIP – section 9(4) • The applicant pays the actual cost when the estimate is more than the actual cost • FOIP - section 7(2) of the Regs. • LAFOIP – section 6(2) of the Regs. • Fees cannot be charged for full denials • FOIP - section 8 of the Regs. • LAFOIP – section 7 of the Regs.

41. Fee Estimates:Required Components • Detailed explanation of the fees is important. • The following components should be considered for a cost estimate letter: • time required to search for records (perhaps break out paper and electronic); • time to prepare records for disclosure; and • other costs – including number of photocopies, cost of photographs, etc. • Cost estimate letter should address any fee waiver requests (if not done already) • See OIPC Report No. F-2005-005, F-2007-001

42. Estimate of Costs Form • This form is not prescribed in the regulations – administrative only • Sample Estimate of Costs Letter and two estimate of costs forms are included in Model Letters package.

43. Estimate of Costs - The Clock Stops • Response time is suspended when an estimate letter is sent. • Response time resumes when the applicant notifies you that he/she wants to proceed with the request and pays any deposit required. • See section 9(3) of the FOIP Act and 9(3) of LAFOIP.

44. This is going to take more than 30 days to complete… • FOIP/LAFOIP allows for an extension of up to 30 additional days, in limited circumstances. • To invoke a time extension, one of the following situations must apply: • large number of records or search through large number of records and work would otherwise interfere with the operations of the public body • Sections 12(1)(a)(i) of FOIP and 12(1)(a)(i) of LAFOIP • there are a large number of requests and work would otherwise interfere with the operations of the public body • Sections 12(1)(a)(ii) of FOIP and 12(1)(a)(ii) of LAFOIP • consultations are necessary which cannot be completed within the original 30 days • Sections 12(1)(b) of FOIP and 12(1)(b) of LAFOIP • third party notice is required • Sections 12(1)(c) of FOIP and 12(1)(c) of LAFOIP. • See OIPC Report No. F-2006-003 and F-2006-005 • Sample Extension of Time Letter included in Model Letters package.

45. What’s been done so far? • Clarified request (if necessary). • Found responsive records. • Estimated/collected deposit (if necessary). • Extended response time (if necessary). • It’s time to: • review all responsive records; and • prepare notification letters.

46. Workshop Exercise Two • Calculate an estimate of costs to process the access request. • See handouts.

47. PART IV: Records Review and Exemptions

48. Records Review • FOIP/LAFOIP are about providing access to records, but some information may be exempt from release. • There are exemptions in the Act: • mandatory; and • discretionary. • Line-by-line review of responsive records.

49. Mandatory Exemptions The “head” cannot disclose the information. The wording, “a head shall refuse access…” will be used. Discretionary Exemptions The “head” must decide if the information can be disclosed. The wording, “a head may refuse access…” will be used . Two Main Types of Exemptions

50. Mandatory Exemptions Note: Below are titles only. Please consult the Act for complete wording of each provision before attempting to apply these exemptions. • Records from other governments (FOIP, s. 13; LAFOIP, s. 13) • Cabinet Documents (FOIP, s. 16; not in LAFOIP) • Third party information (notification to third party may be required) (FOIP, s. 19; LAFOIP, s. 18) • Also consider protection for personal information about an identifiable individual (FOIP, s. 29; LAFOIP, s. 28; HIPA, ss. 27, 28, 29)