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OVERVIEW
Section 8 sets minimum requirements for the contents of a response to a formal request under the Act. Once public bodies have responded to a formal request, they keep copies of the reviewed and severed records for future reference.
SECTION REFERENCE
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(1) |
In a response under section 7, the head of the public body must tell the applicant |
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(a) |
whether or not the applicant is entitled to access to the record or to part of the record, |
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(b) |
if the applicant is entitled to access, where, when and how access will be given, and |
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(c) |
if access to the record or to part of the record is refused, |
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(i) |
the reasons for the refusal and the provision of the Act on which the refusal is based, |
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(ii) |
the name, title, business address and business telephone number of an officer or employee of the public body who can answer the applicant’s questions about the refusal, and |
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(iii) |
that the applicant may ask for a review under section 53 or 63. |
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(2) |
Despite subsection (1)(c)(i), the head of a public body may refuse in a response to confirm or deny the existence of |
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(a) |
a record containing information described in section 15 (information harmful to law enforcement) or |
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(b) |
a record containing personal information of a third party if disclosure of existence of the information would be an unreasonable invasion of the party’s personal privacy. |
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SUMMARY
Section 8 of the Act provides the minimum requirements for the contents of a response to a formal request under the Act, once the public body has determined whether the applicant is entitled to access. The final response is the last in the series of steps involved in responding to a formal request. The final response informs the applicant of the public body’s decision to either grant or deny access to all or part of the information. In addition, the final response will provide any additional information that may be helpful to the applicant.
POLICY
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The public body shall provide access to the requested records within the time limit specified under section 7.
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The provision of a list of relevant records held by the public body, so that the applicant may identify specific records that the public body will then review and sever, does not constitute a response to a request.
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The public body shall provide a phased response to the request if it is possible to give access to some of the requested records sooner than others.
Examples:
- The public body determines during the review of the records that some of the requested records can in fact be released routinely because they are known to contain on excepted information.
- Some of the requested records require less time to review than others.
- Some of the requested records contain third party information. Others may be released while the public body consults with the third party.
In such cases, the public body releases the available records as soon as possible rather than waiting until all records are ready for release.
- Where a public body requires clarification or wishes to attempt to narrow a request, the public body shall contact the applicant and collect the necessary information in order to respond within the time limit under section 7.
- If the public body is giving access, it tells the applicant where, when and how access is to be given.
- If the public body is not giving access, it tells the applicant why not, informs the applicant of the right to ask the Commissioner for a review of the decision and gives the applicant the name, business address and business telephone number of an officer or employee in the public body who can answer the applicant’s questions. The public body must specify all exceptions under which information is being withheld, including where more than one exception may apply to the same information. In addition, where possible the public body should reveal the reasons for non-disclosure of the requested information, if the reasons can be disclosed without revealing the substance of the withheld information.
PROCEDURE
The following letters will provide guidance in drafting the various types of final responses to formal requests under the Act. Providing a list of relevant records held by a public body, so that the applicant may identify specific records that will be reviewed and severed, does not constitute a response to a request.
- Letter 8-1: Response to Access Request - Granting Full Access
- Letter 8-2: Response to Access Request - Denial of Part of Request
- Letter 8-3: Response to Access Request - Denial of Request
- Letter 8-4: Response to Access Request - Refusal to Confirm or Deny Existence of a Record
INTERPRETATION
Interpretation Paragraph 8(1)(a):
The head of a public body must advise the applicant in writing whether or not they are entitled to access to the entire record or part of the record requested.
Access to a requested record or part of the record will be provided in the following circumstances:
- the information is within the scope of the Act; and
- the information does not fall within a mandatory or discretionary exception; or
- the information falls within a discretionary exception and the head of the public body exercises discretion in favour of releasing the information.
Example:
- If information has been severed from the record, the public body provides an explanation of the severance to the applicant (unless this explanation would in itself reveal excepted information, as may be the case with some law enforcement information).
Interpretation Paragraph 8(1)(b):
The head of a public body must inform in writing, any applicant who is entitled to access, where, when and how access will be given.
Example:
- An applicant has requested to examine a record that cannot be reasonably reproduced. Under subsection 9(3), the public body must provide the applicant with an opportunity to examine the records, therefore, the response must include the time and place at which the applicant may examine the requested information.
Interpretation Paragraph 8(1)(c):
If the applicant is refused access to all or part of a record, the response should be as complete as possible in providing the reasons for refusal and the section(s) of the Act upon which the refusal is based. See Order 323-1999. If more than one exception applies to the same information the public body specifies all the applicable exceptions.
The applicant is also provided with the name, title, business address and business phone number of the Director/Manager of Information and Privacy (DMIP) who will be able to answer any questions the applicant may have.
In addition, the response must inform the applicant that they have a right to request a review of the decision under subsections 52(2) or subsection 62(2) and the process for requesting a review under section 53 or section 63.
Reasons for refusal - Record does not exist
A public body may receive requests for a record which does not exist. In such cases, the public body consults with the applicant to determine if the request may be for other information that does exist. If not, the response letter informs the applicant of the steps that the public body has taken to determine that the requested record does not exist.
In some cases, the request may relate to a record that has been destroyed prior to the receipt of the request in accordance with an approved records retention and disposition schedule. Where this is the case, the public body informs the applicant when and under what authority the record was destroyed. If the public body does not have these details, but knows that the record was destroyed, as may be the case with requests for older records, it conveys this information to the applicant.
See Letter 8-3: Response to Access Request - Denial of Request.
Interpretation Subsection 8(2)
May refuse in a response to confirm or deny the existence of a record
In some circumstances, the mere knowledge that a record exists will cause harm to law enforcement or will unreasonably invade the personal privacy of a third party. Therefore, under subsection 8(2) the head of a public body may refuse to confirm or deny existence of such a record, as outlined in paragraphs 8(2)(a) and 8(2)(b).
Despite subparagraph 8(1)(c)(i), if a record contains information the disclosure of which could
reasonably be expected to harm a law enforcement matter under paragraph 15(1)(a) the head of the public body is permitted to refuse to confirm or deny its existence.
Example:
- Disclosure of investigation records or criminal intelligence might reveal information to the applicant that would harm an investigation or intelligence-gathering activity.
Under paragraph 8(2)(b) and despite subparagraph 8(1)(c)(i), if a record contains information the disclosure of which would result in an unreasonable invasion of a third party’s privacy as stated in section 22, the head may refuse to disclose whether or not the requested information exists.
Example:
- A journalist requests information on psychiatric treatment given to a prominent politician. Such information is personal to the politician and the head of the health care body could decide to deny access to the politician’s health information. Such a denial would, however, reveal the fact that the politician had received psychiatric treatment. This revelation would in itself constitute an unreasonable invasion of personal privacy. The head of the health care body therefore decides neither to confirm nor deny the existence of the politician’s psychiatric files.
If an applicant asks the Commissioner to review a refusal to confirm or deny the existence of a record, the public body must be able to provide detailed and convincing reasons why subsection 8(2) was claimed.
REFERENCES
APPENDICES
| Letters: |
Letter 8-1: Response to Access Request - Granting Full Access |
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Letter 8-2: Response to Access Request - Denial of Part of Request |
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Letter 8-3: Response to Access Request - Denial of Request |
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Letter 8-4: Response to Access Request - Refusal to Confirm or Deny Existence of a Record |
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