Freedom of Information and Protection of Privacy Act

Guide for Local Public Bodies: Access to Information

Contents

Requests for Access to Information

[SECTIONS 7 AND 8]

Any person may request access to records in the custody or under the control of a public body falling under FIPPA, including a record containing information about the applicant, by completing the prescribed Application Form. The public body must respond to that application in writing and grant access to the requested records, or some of the records, unless:

• the records are excluded from FIPPA under clauses 4(a) to 4(k);
• the records are excluded from FIPPA by another Act or regulation; or
• the information in a record falls within one of the 4 mandatory exceptions to disclosure or one of the 12 discretionary exceptions to disclosure in section 17 to 32 of FIPPA.

The right of access is subject to the payment of fees required by the Access and Privacy Regulation.

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Duty to Assist the Applicant

[SECTION 9]

FIPPA requires that all public bodies try to respond quickly, accurately and fully to an applicant's application for access and to assist the applicant to a reasonable extent. This duty is an important underlying provision of FIPPA. It is a duty throughout the application process, but is critical during initial contact with the applicant.

The Access and Privacy Coordinator should attempt to understand what records the applicant is requesting, and to ensure that he or she understands the application process. Often this will make the process easier and less time-consuming for both parties.

If an applicant feels that the public body has not fulfilled this duty to assist an applicant, he or she has the right to make a complaint to the Ombudsman.

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The Application Form

[SECTION 8; REGULATION, SECTION 3]

To apply for access to a record under FIPPA, a person must use the prescribed Application for Access Form. A copy of this form is included in the Forms, Letters and Notices section of the Handbook. If a person makes a request in a letter, the Access and Privacy Coordinator should immediately provide him or her with an application form. A helpful option in this situation might be to staple the original letter to the application form, which the applicant could fill out as follows: "I request access to the information described in the attached letter."

Each local public body should have a supply of Application Forms, which are available in both French and English, at its main public service desks. The form is also available on this Web site or may be ordered from:

Materials Distribution
Manitoba Government Services
1680 Church Ave Winnipeg MB R2X 2W9
Phone: 204-945-0570 Fax: 204-945-0293

The Application Form may be photocopied as required.

An applicant may make an oral request if he or she has limited ability to read or write in English or French, or has a disability that make it difficult to make a written request. In these situations, a staff member of the public body should complete the application form as directed by the applicant, have the individual sign it if possible, date stamp it and sent it immediately to the Access and Privacy Coordinator.

An applicant must submit the application form to the public body that the applicant believes has custody or control of the record being requested. The applicant should also provide enough detail to enable an experienced employee of the public body to identify the record.

Local public bodies should make their directories of records available to applicants or suggest that they consult the FIPPA web site. The directories will assist applicants to understand the functions of the public body and what records it holds. They also should help applicants to direct their requests to the appropriate public body and to be more specific in their requests.

If an applicant has requested access to a record which includes personal health information about himself or herself, as well as other information, the personal health information in the record must be dealt with under The Personal Health Information Act (PHIA), not FIPPA. As PHIA does not require that a request for access be in writing, the Coordinator may decide to treat the FIPPA application as an application under both Acts. This would also be in keeping with the requirement in FIPPA to help applicants. The time limit for responding to a request by an individual for his or her own personal health information is limited to 30 days (with no extension) and the only reasons for refusing an individual access to his or her own personal health information are set out in section 11 of PHIA.

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Processing the Request

The Application Form should be date stamped as soon as it is received by the public body (Access and Privacy Regulation, subsection 3(3)). The Access and Privacy Coordinator should review the request, on the same day if possible, to determine whether the application is understandable and complete, whether a formal FIPPA application is necessary, whether the application has been sent to the appropriate public body, and whether consultation with third parties or another public body may be required.

If the request is not clear or complete, the Coordinator should contact the applicant as soon as possible(by telephone, fax or e-mail, if practical, bearing in mind the need for confidentiality) to clarify the request.

If the requested information is available without having to apply under FIPPA, the Coordinator should notify the applicant immediately and advise him or her of the normal process for attaining the information. In many cases, the public body will simply provide the information, subject to any copying charge. In some instances, the applicant may be required to fill out a different application form or pay a fee. The Coordinator should ensure that the applicant understands what is required or who to contact for further information and should then confirm that the applicant wishes to withdraw the FIPPA application.

If the application should have been sent to another public body because:

• 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,

the Coordinator should transfer it as soon as possible, and no later than seven days after receipt, to the appropriate public body. The applicant must be advised of this transfer by letter as soon as possible by the Coordinator. Local public bodies requiring assistance with transfers may contact Access and Privacy Services at the contact numbers at the front of this Guide.

The Coordinator should insure that the public body begins identifying the records requested by the applicant as soon as possible after receiving the application. In many cases, this will simply mean going to a particular office or filing cabinet, or checking a computer file. In other instances, it may be necessary to obtain records from several areas, to bring records in from storage, or to examine documents transferred to the archives of the public body.

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Severing

[SUBSECTION 7 (2)]

When some -- but not all – of the information in a record falls within an exception to disclosure, the head of the public body must grant the applicant access to as much of the record as can reasonably be provided without releasing the information which is excepted from disclosure. The information that is not being provided to the applicant is "severed" from the record and not disclosed to the applicant. The object of severing is to release as much information as possible without disclosing information protected by an exception.

In general, under FIPPA access to a record cannot be refused because of its title or form. The information in the record must be carefully examined, often on a line-by-line basis, to determine if any exceptions to disclosure apply.

It is critical that severing be done only on copies of records; the original record must not be altered. One method is to make a copy of the original record and to cover, on the copy, the information which is not to be released with removable tape. The applicable exception to disclosure provision in FIPPA (number of the section, subsection and clause) should be written on top of the tape or in the margin, so that the applicant will know why the information has not been released. When one or more entire pages have been severed, indicate the number of pages severed and the applicable exception or exceptions to disclosure. It will be necessary to photocopy the taped version of the document again, for the applicant to examine.

In most cases, the smallest unit of information to be disclosed after severing is a sentence. But even when only a sentence remains, some information (such as a name) may need to be removed so the remainder can be released.

Note: Both the taped version of the record and a copy of the version provided to (or made available for viewing by) the applicant should be kept on file by the public body.

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Responding to a Request

[SECTION 12]

If the public body has custody or control of the requested record and it falls within the scope of FIPPA, access may be granted in full, may be partly granted or may be refused, depending upon the applicability of the exceptions to disclosure. The head of the public body must notify the applicant in writing of the decision to grant or to refuse access to all or part of the record.

If access is to be given, the head of the public body must inform the applicant where, when and how access will be given.

If access is denied to all or part of a record, the response of the head must include the reasons for refusal and the specific provisions of FIPPA on which the refusal is based. Where refusal is based on an exception to disclosure, the number of the section, subsection and clause of the exception must be provided. The response must also provide the title and business telephone number of an officer or employee who can answer the applicant’s questions about the refusal. Finally, the response must also tell the applicant that he or she has the right to file a complaint with the Ombudsman within 60 days.

In some cases, a requested record may never have existed, may have been destroyed under the records management system of the public body, or may have been lost. If a record has been lost, the public body should review its records management policies and procedures to ensure that this will not happen again. In the written response, the head must inform the applicant that access is refused as the record does not exist or cannot be located. He or she should explain briefly the steps taken to locate the record or provide the date of destruction if it was destroyed. The title and telephone number of an officer or employee who can answer the applicant’s questions about the refusal should also be given. Again, the response must inform the applicant that he or she has the right to file a complaint with the Ombudsman within 60 days.

In some circumstances, the mere knowledge that a record exists will cause harm (for example, records respecting on-going police investigation). Where the head of the public body decides to refuse access, he or she may also refuse to confirm or deny the existence of a record that contains information which, if disclosed, might be harmful to individual or public safety, to law enforcement or to legal proceedings, or which contains personal information about a third party, if disclosing the existence of the record would be an unreasonable invasion of the third party's privacy.

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Giving Access

[Subsection 14 (1)]

An applicant may request to examine the original record or to receive a copy of the record.

If the record must be severed, and the applicant has asked to examine the record, the applicant can only examine a copy of the severed record. The applicant can not be charged a fee for the required photocopying if the applicant does not receive a copy of the record.

If the applicant has requested a copy of the record and the record can reasonably be reproduced, a copy must be provided. The applicable copying fee should be charged, unless the head of the public body decides to grant a fee waiver.

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Access to Electronic Records

[Subsection 10(1)]

As more and more information is maintained in electronic form, applicants will increasingly ask for access to electronic records. Electronic records are subject to FIPPA in the same way as paper records.

If the information requested is in electronic form in the custody or under the control of the public body, and if a record can be produced using the normal computer hardware, software and technical expertise of the public body, without interfering "unreasonably" with the operations of the public body, the public body must produce a record for the applicant. A fee can be charged for internal or external computer programming and data processing costs.

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Creating a Record in the Form Requested

[Subsection 10 (2)]

When an applicant requests information which is held by the public body, but not in the form requested, the head of the public body may create the record in the form requested, if he or she believes that doing so would be simpler or less costly for the public body than producing the records as they exist. For example, it may be more efficient for the public body to prepare a list of travel expense claims in response to an application, instead of letting the applicant go through all the invoices for the specified time period.

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Time limit for Responding and Extending the Time Limit

[SECTIONS 11 and 15]

Public bodies must make every reasonable effort to respond to a request for access in writing within 30 days after receiving it, unless the time limit is extended or the request has been transferred to another public body. Note that the 30 day time limit is based on calendar days, not working days. The 30 days start to run on the day after the date that the application is received by any employee in any office of the public body.

There are four circumstances in which the public body may extend the time limit for up to an additional 30 days (or for a longer period if the Ombudsman agrees):

• if the applicant has not provided enough detail to enable the public body to identify the requested record;

• if the public body needs time to consult with a third party or another public body before deciding whether or not to grant access;

• if a large number of records is requested or the public body must search a large number of records, and responding within 30 days would interfere unreasonably with the operations of the public body; or

• if a third party makes a complaint to the Ombudsman about a decision to grant access.

If the public body extends the time limit, it must inform the applicant in writing, giving the reason for the extension and an indication when a response can be expected, and stating that the applicant has the right to complain to the Ombudsman about the extension.

If the public body does not respond within the 30-day period or any extended period, this failure is to be treated as a refusal of access. In this instance, the applicant may complain to the Ombudsman about both the delay in responding to the request and the deemed refusal of access.

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Exceptions to Disclosure

[SUBSECTION 7(2) AND SECTIONS 17 to 32]

An applicant’s right of access under Part 2 of FIPPA does not extend to information in a record which falls within an exception to disclosure in sections 17 to 32.

A refusal to disclose information in a record to an applicant must be based on one or more of the exceptions to disclosure. For example, it is not appropriate to refuse access simply because disclosure of the record might cause embarrassment to the public body – embarrassment is not an exception to disclosure under FIPPA.

There are two types of exceptions to disclosure in FIPPA:

• mandatory exceptions which require the head of a public body to refuse to disclose a record or part of a record (sections 17 to 20 and subsections 25(2) and 27(2)), and

• discretionary exceptions which permit the head to refuse to disclose a record or part of a record (sections 21 to 32).

More than one exception to disclosure may apply to the same information.

In considering whether an exception applies, local public bodies should keep the following principles in mind:

• exception provisions should be strictly interpreted, as one of the purposes of FIPPA is to provide access to records, subject to the "limited and specific" exceptions set out in the Act;

• Manitoba courts have ruled, in the context of the former Freedom of Information Act, that to come within an exception, the information must fall squarely within the ambit of the exception provision; and

• generally, the public body bears the burden of proving that an exception is justified if there is a complaint to the Ombudsman or an appeal to court.

To confirm that an exception to disclosure applies, it is very important to read the relevant section of FIPPA in its entirety. Frequently, an exception is followed by specific limits, which have the effect of significantly reducing the scope of that exception.

Finally, where an exception to disclosure applies to some of the information in a record, only that portion is severed and withheld; the applicant is entitled to access the remainder of the record.

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Mandatory Exceptions to Disclosure

[Sections 17 - 20, Subsections 25(2), 27(2)]

A mandatory exception to disclosure is clearly recognizable by the following phrase: "the head of a public body shall refuse to disclose information …."

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Privacy of a Third Party

[Section 17]

The head of a public body is required to refuse to disclose to an applicant personal information about another individual, if disclosure would be an unreasonable invasion of his or her privacy. This exception to disclosure protects third parties who are individuals, not corporations, businesses, organizations or other public bodies.

Subsection 17(2) lists types of personal information which are so sensitive that disclosure to someone else is "deemed" to be an unreasonable invasion of privacy (such as personal health information, information about a third party’s employment or educational history, source of income, financial history, etc.).

For other types of personal information, the head of the public body must consider all relevant circumstances including whether disclosure might unfairly expose the third party to harm or if the personal information has been provided in confidence. It is recognized, however, that there are some situations where third party personal information should be accessible, such as if the third party consents, if there are compelling circumstances affecting the health or safety of the applicant or another person, or if the information concerns salary ranges or classifications of employees of public bodies or members of governing councils of public bodies.

The head of a public body may, in responding to a request for access, refuse to confirm or deny the existence of a record containing personal information about a third party, if disclosure of the existence of the record would be an unreasonable invasion of the third party’s privacy.

Section 33 of FIPPA provides that the head of a public body must, where practicable, notify a third party in writing if the head is considering giving access to a record the disclosure of which might result in an "unreasonable invasion" of the third party’s privacy under section 17. Sections 33 and 34 further provide that the third party has a right to make representations respecting the proposed disclosure.

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Business Interests of Third Parties

[Section 18]

This mandatory exception to disclosure applies to third party trade secrets; to commercial, financial, labour relations, scientific or technical information supplied to the public body in confidence, and treated as confidential by a third party; and to commercial, financial, labour relations, scientific or technical information which, if disclosed, could reasonably be expected to:

• harm the competitive position of a third party;
• interfere with contractual or other negotiations of a third party;
• result in a significant financial loss or gain to a third party;
• result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied; or
• reveal information supplied to, or the report of, an arbitrator or other person appointed to resolve a labour relations dispute.

The head of a public body must refuse access to information about a third party that was collected on a tax return or for the purpose of determining tax liability or collecting a tax.

This exception protecting third party business interests does not apply if the third party consents to disclosure, if the disclosure is expressly authorized or required by a statute or regulation, if the information is publicly available, or if the information discloses the final results of product or environmental tests conducted for no fee by the public body.

The head of a public body has the discretion to disclose third party business information to an applicant, if the head believes that the private interest of the third party in non-disclosure is clearly outweighed by the public interest in disclosure for the purposes of public health, safety or environmental protection, improved competition, or government regulation of undesirable trade practices.

Under section 33, the head of the public body must, where practicable, notify a third party in writing if the head is considering giving access to a record which, if disclosed, might affect the third party’s business interest.

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Cabinet Confidences

[Section 19]

The head of a public body is required to refuse to disclose information that would reveal the substance of the deliberations of the Cabinet of the Manitoba Government or committees of Cabinet. This exception to disclosure does not apply to information that is more than 30 years old or if the Cabinet for which the record was prepared consents to the disclosure.

Local public bodies will rarely have information containing cabinet confidences in their custody or control.

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Information Provided in Confidence by Another Government to a Local Public Body

[Subsection 20(2)]

The head of a local public body is required to refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal information provided, explicitly or implicitly, in confidence to the local public body by the Government of Manitoba or a government agency, any other government, or another local public body. This might include information received from the RCMP or other local police services, from a Child and Family Services Agency, or from another municipality, school division or regional health authority.

This exception does not apply if the source of the information consents to its disclosure or makes the information public.

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Discretionary Exceptions to Disclosure

[Sections 21 - 32]

A discretionary exception to disclosure permits the head of a public body to disclose information in a record, even though the information falls within the exception. A discretionary exception to disclosure always contains the phrase: "the head of a public body may refuse to disclose …."

In determining whether to apply a discretionary exception, the head of a public body must first decide whether some or all of the information in the requested record falls within the discretionary exception provision. The head must then decide whether or not to disclose the information, even though the exception could be relied upon as a basis for refusing access.

The exercise of discretion is not simply a formality where the head routinely refuses access. For each request, the head must decide whether or not to exercise the discretion to disclose information, taking into consideration the information requested and the particular circumstances of the case. The head must not replace the exercise of discretion with a blanket policy that information will not be released, simply because it may be withheld under one of the discretionary exceptions. Discretion must be exercised in a meaningful manner.

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The discretionary exceptions are:

Information Affecting Intergovernmental Relations

[Section 21]

The head of a public body has the discretion to refuse to disclose information which could reasonably be expected to harm relations between the Government of Manitoba or a Manitoba government agency and another government (Canadian or foreign) or a local public body.

The head of a local public body must have the consent of the Manitoba government department or government agency affected to disclose information which could be expected to harm relations with that Government or agency.

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Local Public Body Confidences

[Section 22]

The head of a local public body has the discretion to refuse to disclose information if it might reasonably be expected to reveal:

• draft resolutions, by-laws or other legal instruments by which the local public body acts.

This provision does not prevent a local public body from issuing draft by-laws, etc. to the public for discussion. This exception does not apply if the draft has been considered in a meeting open to the public.

• the substance of deliberations of the local public body’s elected officials or governing body (or a committee of elected officials or of the governing body) if a statute, regulation, by-law, resolution or other legal instrument authorizes the holding of that meeting in the absence of the public.

This provision is designed to ensure that bodies such as municipal councils, school boards, Boards of Governors of universities and colleges, hospital boards or directors, and their committees, can meet privately when necessary to engage in frank discussion about matters such as personnel and budgeting. It only applies with respect to deliberations at meetings of the local public body where there is legal authority to hold the meeting in the absence of the public. Examples of enactments which authorize meetings of local public bodies to be held in the absence of the public are subsection 152(3) of The Municipal Act and subsections 14(3) and (4) of The Colleges Act.

These exceptions to disclosure do not affect the right of a local public body to regulate either the procedures for its meetings or what may be discussed in a meeting closed to the public. These matters are governed by the legislation under which the local public body operates.

Where the information is in a record which is more than 30 years old, these exceptions do not apply. This limit to the local public body confidences exception is similar to the limit to the exceptions for Cabinet deliberations and advice to a public body.

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Advice to a Public Body

[Section 23]

This discretionary exception protects the advisory and deliberative processes involving a public body. It is intended to ensure that full and frank discussion of issues can take place among officials, employees and others advising a public body.

The head of a public body may refuse to disclose information to an applicant if disclosure could reasonably be expected to reveal:

1. advice, opinions, proposals, recommendations, analyses or policy options developed by or for the public body;
2. consultations or deliberations involving officers or employees of the public body. For example, there is no specific exception to disclosure for minutes of meetings of officers or employees. However, if these minutes contain information which could reasonably be expected to reveal consultations or deliberations involving officers or employees of the public body, this information could be severed from the record;
3. positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the public body, or considerations that relate to those negotiations;
4. plans relating to the management of personnel or the administration of the public body that have not yet been implemented. Once the plan has been implemented, access to the record can no longer be refused under this clause. Another exception to disclosure may, however, apply;
5. the content of draft legislation, regulations and orders of ministers or the Lieutenant Governor in Council. This exception to disclosure primarily concerns the Government of Manitoba; and
6. information, including proposed plans, policies or projects of a public body, the disclosure of which could reasonably be expected to result in disclosure of a pending policy or budgetary decision. Once the policy or budgetary decision has been made and implemented, this exception no longer applies. Another exception to disclosure may, however, apply to the information.

The above exceptions do not apply if the information is:

• in a record that is more than 30 years old;
• an instruction or guideline issued to officers or employees of the public body;
• a substantive rule or statement of policy that has been adopted by the public body for the purpose of interpreting a statute or regulation or administering a program or activity of the public body;
• the result of a product or environmental test conducted by or for the public body;
• a statement of the reasons for a decision made in the exercise of a quasi-judicial function or discretionary power affecting the applicant;
• the result of background research of a scientific or technical nature undertaken in connection with the formulation of a policy proposal, except for economic or financial research related to the formulation of a tax or other economic policy of the public body;
• a statistical survey; or
• a final report or audit on the performance of the public body or any of its programs, except for reports on the performance of an individual who is or was an officer or employee of the public body.

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Disclosure Harmful to Individual Health or Safety or Public Safety

[Section 24]

The head of a public body has the discretion to refuse to disclose to an applicant information in a record, including personal information about the applicant, if disclosure could reasonably be expected to:

• threaten or harm the mental or physical health or safety of another person;
• result (in the opinion of a duly qualified physician, psychologist or other appropriate expert) in serious harm to the applicant’s mental or physical health or safety; or
• threaten public safety.

Occasionally, the mere knowledge that a record containing information described in this section exists could cause harm to the applicant, or to another person, or could threaten public safety. The head may refuse to confirm or deny the existence of the record in these rare situations.

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Law Enforcement Matters

[Section 25]

Generally speaking, the head of a public body may refuse to disclose information in a record if it could reasonably be expected to:

• harm law enforcement activities and other specified investigative, regulatory, adjudicative and protective functions of a public body described in this section;
• disclose specified records or information respecting law enforcement and related matters described in this section; or
• be injurious to legal proceedings.

The head of a public body must refuse to disclose information in a record if it is in a law enforcement record and the disclosure is prohibited under a statute or regulation of the Government of Canada (for example, section 46 of the Young Offenders Act ). The record need not have been created for the purpose of law enforcement provided it is submitted to, or used by, the public body for a law enforcement purpose.

These exceptions do not apply to a report on the success of a law enforcement program, unless disclosure could reasonably to be expected to cause any harm or interference with law enforcement as outlined in the exceptions. The exceptions also do not apply to a record that provides a general outline of the structure or programs of a law enforcement agency, such as the City of Winnipeg Police Department.

In some circumstances, the mere knowledge that a record containing information described in this section exists could cause harm to the applicant or to another person, or threaten public safety. The head of a local public body may refuse to confirm or deny the existence of the record in these rare situations under subsection 12(2).

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Security of Property

[Section 26]

This discretionary exception to disclosure gives the head of a public body the discretion to refuse to disclose information that, if revealed, could reasonably be expected to harm or threaten the security of any property or system, including a building, vehicle, electronic information system or communications system.

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Solicitor-Client Privilege

[Section 27]

The head of a public body has the discretion to refuse to disclose information that is subject to solicitor-client privilege, that has been prepared by or for an agent or lawyer of the public body relating to a legal matter, or that is contained in correspondence between an agent or lawyer of the public body and any other person relating to a legal matter.

The head must refuse to disclose information of other persons (third parties) that is subject to solicitor-client privilege.

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Economic and Other Interests of a Public Body

[Section 28]

If disclosure of information in a record could reasonably be expected to harm the economic or financial interests or negotiating position of a public body or the Government of Manitoba, an applicant's request for access to that information may be refused. This includes trade secrets, innovative scientific or technical information, or information relating to pending policy decisions.

This does not apply to the results of a product or environmental test conducted by or for the public body, unless the test was done for the purpose of developing methods of testing or for the purpose of testing products for possible purchase.

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Testing Procedures, Tests and Audits

[Section 29]

This exception permits the head to refuse to disclose information relating to testing or auditing procedures, specific tests to be given, or audits to be conducted if disclosure could reasonably be expected to prejudice the use or results of particular tests or audits.

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Confidential Evaluations

[Section 30]

The head of a public body may refuse to disclose personal information that has been provided in confidence, explicitly or implicitly, for the purposes of determining the applicant's eligibility or qualifications for employment, or for the purpose of awarding a contract.

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Preservation of Heritage Resources and Life Forms

[Section 31]

This exception to disclosure reflects public concern for the preservation of heritage resources and rare or endangered species. The head of a lpublic body has the discretion to refuse to disclose information in a record if disclosure could reasonably be expected to result in damage to or interfere with the protection or conservation of a heritage resource (as defined in The Heritage Resources Act) or any rare or endangered life form.

The head also has the discretion to refuse to disclose information regarding a contemplated designation of a heritage site, a municipal heritage site, or a heritage object under The Heritage Resources Act.

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Information That is or Will be Available to the Public

[Section 32]

If an applicant requests access to information that already is freely available to the public or available for purchase, the head of the public body may refuse to disclose information under FIPPA. Instead, the public body should advise the applicant that the information is available without application and how it can be obtained.

If the information is going to be published or released within 90 days after the applicant’s request is received, the head of the public body has the discretion to decide whether to withhold the information. In this case, the head must notify the applicant when the information becomes available. If the information does not become publicly available within 90 days, the head must re-consider the applicant's request for access as if it were a new application received on the last day of the 90 day period. The exception in this clause may not be used a second time as a basis for refusing to disclose the requested information to the applicant.

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Records Available without and Application

[SECTION 76]

The head of a local public body may decide that certain records may be made available to the public without an application under FIPPA. For example, the head of a local public body may believe that the 30-year closure period for in-camera meeting minutes is unnecessarily long and may exercise his or her discretion to make them available sooner. This is a discretion that should be exercised carefully, particularly to ensure that personal privacy is not violated. Once certain records have been made available under this section to one individual, the local public body should make them available to everyone in the same manner.

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Third Party Intervention

[SECTIONS 33 and 34]

In addition to requesting personal information about themselves or records pertaining to a public body, applicants may request information that relates to a third party. The third party notice and intervention provisions in sections 33 and 34 are intended to protect the interests of a third party who would be affected by disclosure of a record to an applicant under FIPPA, because the third party is the subject of the record or has provided the record.

Where disclosure of information in a record might result in an unreasonable invasion of a third party's personal privacy or harm a third party's business interests, and the head is considering giving access to this information, the head must, where practicable, notify the third party as soon as practicable in writing of the request. Notification must be done within the 30-day period for responding to an application, or within the extended time period if the public body has extended the time limit for responding to the application. If the head of the public body intends to refuse to give the applicant access to the third party information, the third party does not need to be notified.

The notice to the third party must state that a request has been made for access to a record containing information which, if disclosed, might invade the privacy or affect the business interests of the third party. It should include a copy or description of the requested record but should not identify the applicant. The third party should be advised that he or she may make representations to the head explaining why the information should not be disclosed, and that the representations must be submitted to the head within 20 days after the notice is given. The public body should also provide the third party with sufficient information, including an explanation of the grounds on which records can be withheld under FIPPA, to enable the third party to make informed representations.

If several third parties are affected by the request in this manner, each one must be notified (where practicable).

The third party has 20 days after the notice is given to consent to disclosure or to make representations to the head explaining why the information should not be disclosed. Representations must be made in writing, unless the head permits them to be made orally.

When notice is given to a third party, the head must notify the applicant that the requested record contains third party information and that the third party is being given an opportunity to make representations about disclosure. The identity of the third party should not be included in the notice to the applicant.

The head of the public body has 30 days after the third party was notified to decide whether to grant or refuse access to the record. The head’s decision cannot be made before the earlier of 21 days after the notice was given and the day a response is received from the third party. The head may extend the time for making a decision for up to an additional 30 days on the grounds set out in subsection 15(1).

In reaching a decision, the head of the public body must consider any representations made by the third party.

The head is required to give written notice of his or her decision respecting access, with reasons, to both the third party and the applicant.

If the applicant is given access to the record or part of the record, the third party may appeal to the Ombudsman within 21 days after the notice of the decision is given. If the third party does not complain to the Ombudsman within this 21 day period, the applicant will be given access to the record. If the third party complains to the Ombudsman within the 21 day time period, the time limit for the head of the public body to respond to the access application is extended under clause 15(1)(d). The applicant is not given access to any record that is the subject of the complaint until the complaint is dealt with by the Ombudsman and, in the case of an appeal by the third party to the court, until the appeal is completed.

If the applicant is refused access to the record, he or she has the right to make a complaint to the Ombudsman within 21 days from the date the notice of decision is given.

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Fees

[SECTION 82; REGULATION SECTIONS 4 to 7]

There is no fee for making an application under FIPPA. Nevertheless, the public body may require an applicant to pay some of the costs incurred by the public body in responding to the application. The Access and Privacy Regulation establishes four types of fees:

• Search and Preparation Fees

$15 per half hour after two free hours;
time spent finding the requested records and doing any required severing may be charged;

time spent reviewing the records to determine whether any exceptions apply, transferring an application to another public body, copying a record supplied to the applicant, preparing a fee estimate and preparing an explanation of the record cannot be charged to the applicant.

• Computer Programming and Data Processing Fees

  $10 for each 15 minutes of internal programming or data processing or the actual cost incurred by the public body when this work is done by an external agency.

• Copying Fees

  20 cents per page for photocopies and computer printouts;

  50 cents per page for paper copies made from a microprinter;

  actual cost for any other copying method, such as photography;

  Applicants requesting copies of their own personal information are not charged a copying charge if the total copying charge is less than $10.

• Delivery Fees

  Applicants are charged actual costs for courier delivery. No fees are chargeable for regular mailing costs.

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Fee Estimates

[Subsections 82(2) to (4); Regulation, Section 8]

If an applicant will be required to pay search and preparation or computer programming fees, the head of the public body must give a fee estimate before providing the services. As soon as it appears likely that a fee will be charged, an Estimate of Costs Form should be sent to the applicant. (See Forms, Letters and Notices Section of the Handbook.)

Estimates should be prepared carefully because the public body cannot charge more than the estimated amount.

An applicant has up to 30 days from the date the estimate is given to advise the public body if the estimate is accepted or to modify the request in order to reduce the fee. If the applicant wishes the public body to proceed with the original request, he or she must submit payment for the total amount, along with a signed copy of the Estimate of Costs Form.

When a fee estimate is given to an applicant, the time within which the head is required to respond to the access application under subsection 11(1) is suspended until the applicant notifies the head that he or she wishes to proceed. If the applicant does not reply to a fee estimate within 30 days, the public body may consider the application to have been abandoned.

Fees charged for search and preparation, copying and delivery must not exceed the actual costs of the service. Refunds should be given if access to every requested record is refused or if the actual cost of the service is less than the estimate.

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Fee Waivers

[Subsection 82(5); Regulation, Section 9]

The head of a public body has the discretion to waive all or part of the fees in accordance with the regulations, if requested to do so by the applicant. The fees may be waived if the head is satisfied that:

• paying the fees would impose an unreasonable financial hardship on the applicant;
• the applicant is requesting access to his or her own personal information and the head is satisfied that it is fair to waive the fees in the circumstances; or
• the record relates to a matter of public interest concerning public health, safety or the environment.

The head of the public body must inform the applicant in writing of the decision regarding the request for a fee waiver. The applicant may make a complaint to the Ombudsman about a refusal to waive all or part of the fees payable.

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