Archived - Access to Information Guidelines - Requests

This section provides basic guidance to government institutions in the processing of access requests under the Act. Together the statutory provisions and the policies and procedures based on them provide a framework for carrying out this task. Government institutions should, where appropriate, develop and implement internal procedures, ensuring that these are consistent with the provisions of the Acts, Regulations and the content of these Guidelines.

Section 6 of the Act and Section 4 of the Regulations provide that a requester has made a formal request for access to government records when the application meets the following requirements:

• The request is written and indicates that the request is being made under the Access to Information Act or an Access to Information Request Form has been used. There is no requirement to use the Request Form. A complete request will:
  1. be addressed to or be received by an appropriate officer of the government institution listed in Schedule I of the Act that has control of the record;
  2. provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record;
  3. contain the application fee prescribed by Regulation (see Regulations, paragraph 7(1)(a) in Appendix A of the Policy); and
  4. be made by a person entitled to apply (as set out by section 4 of the Act and Chapter 2-2 of this volume).

Although the Act creates a legal requirement to process requests only if the receiving institution holds the record, assistance should be given to the requester on how to proceed with a request even if the initial request was not addressed to the appropriate government institution.

Often the request is expressed in broad terms because of a lack of knowledge about government operations. An employee of the institution experienced in the area of access should contact the requester to clarify the nature of the request or help the requester to understand any difficulties which may be encountered in processing (e.g. the need for additional information from the requester, rationale for fees, time extensions sought etc.). Well handled requests may reduce the incidence of complaints. In some instances, the information can be provided on an informal basis, without further reference to the Act.

Sometimes it may also be possible to obtain agreement on subdividing a request in such a way that some records can be released quickly, with the more complex parts of the request being dealt with over a longer period. The goal is to release in a timely manner as many of the non-exempt documents as possible while minimizing the time extensions associated with the remainder of the request. It is important in all cases where a request is clarified or altered that the institution confirm, in writing, its understanding of the revised request.

Government policy requires that institutions assist individuals who are unable to exercise their rights under the Access to Information Act using the regular procedures. Government policy also requires that where the record or part thereof to be disclosed already exists in more than one alternative format acceptable to the individual, access be given in the format they prefer. Under paragraph 12(3)(b) of the Act, where requestors, because of a sensory disability, express a need for access to the requested records in an alternative format and where the head of the institution is satisfied that conversion of the requested record to the alternative format is both necessary and reasonable, the institution will undertake the conversion.

When deciding whether or not to convert a requested record to an alternative format for a sensory disabled requestor, there are two factors which come into play, whether conversion is necessary and whether it is reasonable.

The policy requires institutions to establish and maintain a system to ensure effective processing of requests within the provisions and time limits established by the Act and Regulations and which can account for all deliberations and decisions regarding the processing of such requests.

A flow chart setting out the major steps in processing access requests is included in Chapter 3-3.

It is important that government institutions document decisions taken at each stage of the process. Such documentation may become necessary as evidence during the review process, especially review of an institution's decisions by the Information Commissioner (e.g. notices of extension or assessment of fees). It is important to remember that wherever discretion is exercised decisions should be made in full appreciation of the facts of the request and upon proper application of the provisions of the Act and should be documented in case of complaint. A sample tracking document is provided in Chapter 3-6. This same form may be used to capture data for the annual report to Parliament, pursuant to subsection 72(1) of the Act. All reports, deliberations and decisions on invoking exemption provisions should be recorded and filed along with the information to which they pertain.

For purposes of the Access to Information Act a record includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic works, photograph, film, microfilm, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics and any copy of these. The definition is not exhaustive meaning that other types of records may exist and they would be subject to the Act. It is directly linked with the definition of information holdings in the policy on the Management of Government Information Holdings set out in the Information Management Volume of the Treasury Board Manual.

The term "under the control of a government institution" means that an institution is authorized to grant or deny access to the record, to govern its use, and, subject to the approval of the National Archivist, to dispose of it. A record that is in the possession of or held by an institution, whether at headquarters, regional, satellite or other office, either within or outside Canada, is presumed to be under its control unless there is evidence to the contrary. A record held elsewhere on behalf of an institution is also under its control. It should be noted that archival records held by National Archives are considered to be under the control of that institution. Personal or political papers of ministers dealing with constituency and other matters and ministerial records which do not relate to the administration or operation of the institution for which the minister is responsible are not deemed to be under the control of the institution for purposes of the Access to Information Act.

Published materials or materials available for purchase and personal papers are excluded from the coverage of the Act. In relation to the latter type of material, the general principle is that government records belong to the Crown and not to the individual who may have created or collected them. It is recognized, however, that officials may have personal records in their office. Examples include records accumulated before assuming a federal government position; materials pertaining to an individual's private affairs outside government service, and diaries, journals, or other personal notes, prepared for other reasons than carrying on the work of the institution. Such papers should be clearly labelled and stored separately from those information holdings used in transacting the business of the institution as it relates to the office involved.

In all government operations there are a variety of records that are transitory in the sense that they are required only for a short time to ensure the completion of a routine action or the preparation of a subsequent record. These short-lived records are not essential in documenting the initiation or conduct of a government institution's business. Examples are the telephone inquiry slip used simply to forward a message, draft documents reflecting initial thoughts before a document is shared with anyone beyond the Public Service employee creating it, or unannotated copies of documents used for information or reference purposes, the originals of which are included in departmental records. Similar situations arise with electronic documents such as early drafts and short-lived electronic mail.

A simple rule of thumb to use in identifying a transitory record is to ask yourself whether the record is used either to initiate or continue a departmental activity, provides comments on an activity under way which requires administrative action, or requests an opinion on an activity of interest to the institution. If the answer to any part of this question is yes, you are not dealing with a transitory record.

Transitory records also exist in data processing environments where input/source records, intermediate input/output records, valid transaction files, system audit records, test records, and print files may be deleted in accordance with system design specifications.

All these transitory records have limited value to the institution and should either be disposed of at the discretion of the individual creating them or by automatic default in automated systems. However, if they have not been disposed of before a request is received to which they may be pertinent then they fall under the Act and, according to the law, must be dealt with as part of the request.

Draft documents are preliminary versions used to create a final document and may be used to solicit comment and input from others before a document is finalized. Draft documents are considered institutional information holdings under the policy on the Management of Government Information Holdings. Thus drafts prepared in the process of making a decision or implementing a policy or other operation before the activity was completed and copies of drafts relating to such activities will be retained and filed where they are annotated or otherwise added to in a fashion which indicates the evolution of the document as it goes through the approval processes. Such records, including those prepared by consultants, fall within the ambit of the Access to Information Act when a request involves a subject to which they relate.

However, some draft documents including previously "saved" versions of electronic documents need not be retained where they are working versions not communicated beyond the individual creating them or are copies used for information or reference purposes only. Such documents may be treated as transitory records and routinely destroyed.

There will exist a very limited number of instances where an institution may wish to totally disassociate itself from records created within the institution or on its behalf. The easiest and most effective way to accomplish this end is to have the record prominently marked on its face and on each subsequent page with a diagonal line and the words "not forwarded or used". Such documents are, however, to be considered as part of any access request relating to the subject matter involved.

Electronic Mail is fast becoming a major tool by which Public Service employees communicate among themselves. Once again it is a technology which allows rapid transmission of information for interpersonal communications. It is used both as a means of formal communication and, in some circumstances, as the equivalent of informal verbal exchange. In this sense, electronic mail is no different than any other piece of information created or obtained by an institution in the carrying out of its business. Much of the information created in this way will have direct impact on the management of the institution and the various activities it carries out. This will vary from the simple call for a meeting with rough agenda to direction to prepare a major policy paper, some initial thoughts on how to proceed, or comments on a completed draft. This type of information should be filed as a record of the institution. Some messages will be ephemeral and may be equated with simple telephone messages. These may be discarded in accordance with appropriate disposal authorities approved by the National Archivist.

When electronic mail has been copied to another filing system or forms part of the current directory and file for the actual electronic mail system then it would fall within the scope of a request. If a record exists when an access request is received, it is incumbent upon the institution to take reasonable measures to ensure that records relating to the subject of the request are not destroyed until the request has been completed, including any complaint or appeal process.

Dockets transmitting access requests for processing should make clear that records relating to a request cannot be arbitrarily destroyed and that even where they may be scheduled for destruction under an approved schedule they should not be disposed of until the request (and subsequent complaint, if any) is fully processed, as personnel outside the Access Unit may not be aware of the requirement for retention in such circumstances.

The Act creates the right of access to information in records under the control of government institutions. This is to be interpreted as access to existing records and therefore no legal obligation exists to create records to comply with particular access requests. From time to time, it may be convenient to create a particular record to satisfy a request. Due regard should be taken, however, of the precedent set by providing this service. Although not a legal requirement, in an effort to honour the spirit of the legislation, government institutions also may explain or interpret the records for the requester. Again, the precedent set in doing so should be considered.

The Act does require the creation of records which do not exist at the time of the request in the case of machine readable records. Subsection 4(3) specifies that records that do not exist but can be produced using computer hardware and software and technical expertise normally used by the government institution, shall be deemed to be a record under the control of the government institution. Section 3 of the Regulations places a condition on the production of a record from machine readable records by stipulating that, if it would unreasonably interfere with the operations of the government institution, production of the record is not required. The calculation of payment for the production of records from machine readable records is done in accordance with subsection 7(3) of the Regulations (see Chapter 4-2).

The condition described in the Regulations of "would unreasonably interfere with the operations of the institution" refers to interference with computer operations. It relates to situations where a computer is in constant use producing scheduled outputs and is not available for other processing purposes. However, where a computer can be operated in off hours the offer should be made to the requester; provided he or she is prepared to pay the costs involved.

Under subsection 4(3) of the Act, a record need only be produced if it is created by using "software…normally used by the government institution". The accent is on the word "normally". Thus, there is no obligation to use a program which has been furnished by the requester or to modify or create a program using professional computer programming, though this would not apply where an office automation system is designed to permit an end user to do elementary programming on their own.

Subsection 10(2) of the Act provides that an institution may but is not required to indicate whether a record exists. Refusal to indicate the existence is reserved for those instances where acknowledging this fact could by itself disclose information to a requester. The provision is used only in exceptional circumstances, particularly in matters relating to security and law enforcement.

Subsection 10(1) of the Act requires that even in these circumstances an institution must indicate the provision on which refusal of access to the record would be based if it existed.

Normally, if an institution receives a request for a record in its possession, it should process the request in consultation with other government agencies with an interest in the record, rather than transferring the request and possibly delaying the response to the requester. However, if there is clearly a greater interest (see Definitions in Chapter 2-0) in relation to the statutory or program responsibilities of the institution, a request may be transferred. In accordance with section 8 of the Act and section 6 of the Regulations, an institution wishing to transfer a request must obtain agreement from the second government institution that the latter will process the request within the remaining allowable time (the second institution is not permitted to refer the request further), and forward the request (and if necessary, the record) within 15 days of its receipt to the government institution with a greater interest and give written notice to the requester to this effect (see Model Letter E in Chapter 3-7). Where a request for access is transferred under this section, the second institution is deemed to have received the request on the date the request was received by the first institution.

To facilitate the administration of application fees, when a request is transferred, the institution that first received the request should indicate to the institution with greater interest that the application fee has been received and if it has been deposited into the Consolidated Revenue Fund.

Section 7 of the Act provides that within thirty days after a request is received an institution will

• give written notice to the requester whether or not access to the record or part of it will be given; and
• if access is to be given, give the requester the record or the appropriate part of it.

The thirty days are calendar days and are counted from the day after the receipt of a complete request in the appropriate office(s) named in the access publication, as provided for in subsection 27(5) of the Interpretation Act.

Subsection 9(1) of the Act sets out circumstances under which the initial period of 30 days may be extended. These are limited to the following:

• if the request is for a large number of records or requires a search through a large number of records and meeting the original time limit, under either of these circumstances, would unreasonably interfere with the operations of the institution;
• if consultation is necessary and it cannot be completed within 30 days. Consultation in this context refers to consultation of the type undertaken with other government institutions, other governments or informally with third parties but not internal consultations;
• notice is given to a third party pursuant to subsection 27(1).

Extensions should be geared to the amount of work required in processing a request and be for as short a time as possible. If the required time extension is greater than 30 days, the head of the institution is required under subsection 9(2) of the Act to inform the Information Commissioner of the extension, at the same time as notice is given to the requester. When extending under sections 9(1)(a) or (b), the period of the extension must be specified. When extending under section 9(1)(c), the period of the extension need not be specified. Any notice of extension is required, under subsection 9(1), to be given to the requester within the original 30-day time period.

Where extension is based on third-party notification, it may not be possible to meet extended deadlines because of the requirements of sections 27 and 28. Since these time periods are required by the Act, an institution cannot be deemed to have refused access under subsection 10(3) of the Act in these circumstances.

In dealing with extensions the following procedures are recommended:

1. assess all requests as soon as possible after they are received and if necessary give notice of a reasonable extension to the requester within 30 days;
2. if the 30 days have passed and you are into the extended period and third-party information is discovered, give notice to the third party, where appropriate, as soon as possible and notify the requester. In addition, access should be given whenever possible within the original time limit to any documents included in the request which are not involved in the third party procedure;
3. if the 30 days have passed and it looks as though access cannot be provided within the extended period, do not formally ask for a further extension. However, by the end of the period of the extension, you should notify the requester that the time limit cannot be met and indicate when access will be given (and of the right to complain to the Commissioner). In addition, it is suggested that you provide access to whatever records have been processed by the end of the original extension period in accordance with that deadline.

Subsection 10(3) of the Act provides that where a government institution fails to give access to a record or notice as to why access will not be granted within the time limits, the institution is deemed to have refused access. Deemed refusals are reviewable by the Information Commissioner.

Subsection 12(1) of the Act requires that a person who is given access to a record or part thereof shall be given an opportunity either to examine a record or part thereof or be given a copy thereof, subject to the Regulations.

When making a formal request under the Act, requesters are asked to indicate their preference for copies or examination of originals. Government institutions are legally required to provide access in the manner preferred by the requester, subject to the limitations set out by subsections 8(1), (1.1), (2) and (3) of the Regulations. The requester also should be given an opportunity to examine the records in person to save the cost of reproduction when he or she wishes to do so, as provided for in section 5 of the Regulations.

It should be noted that when a large number of exemptions are being applied to records it is not practical to permit examination of original records.

Paragraph 8(4)(a) of the Regulations specifies that where access to a record is provided by means of examination, the government institution shall:

1. provide reasonable facilities for the examination of records; and
2. set a time for the examination that is convenient to the government institution and to the requester.

When releasing records institutions should judge the accuracy or completeness of the records and where it is deemed necessary, may consider attachment of an explanation establishing the context in which the records were created or, where data is involved, a disclaimer indicating the nature of their deficiencies.

Paragraph 12(2)(b) of the Access to Information Act qualifies the requirement to provide access in a particular official language by making the preparation of a translation dependent on the public interest. The determination to prepare or deny a translation should be made on a case-by-case basis, according to the circumstances of the request. Preparation of a translation should be considered where there is a public benefit in promoting the requester's purpose in seeking the information.

While the request for a document is treated as a service to the public under the Official Languages Act, this does not impose on government institutions the obligation to translate a unilingual document requested, unless this is in the public interest. In other words, where the Official Languages Act or the government's official languages policies do not require a document to be available in both official languages before the request is made, there is no obligation on the government institution to translate the document subsequent to a request, except where it judges this to be in the public interest.

Government institutions should ensure that access is formally granted within the time limits set by the Act. While the Act provides that the initial 30 day period permitted to process a request may be extended, it does not permit such an extension for the purpose of preparing a translation. When a translation is to be prepared and it appears that it cannot be completed within the initial 30 day period (or such further period as has been established under section 9 of the Act), the institution should inform the requester:

1. that access has been granted;
2. that a translation is being prepared and when it is expected to be complete;
3. that the records, as they currently exist, may be examined or copied without having to wait for the translation;
4. of any other information which the institution is required to communicate to the requester (according to the prescribed notices described in the following section).

The Act sets out specific time limits for processing requests and conditions under which the requester must be notified. The notification requirements prescribed by the Act are set out below (third party notices are discussed in Chapter 3-5).

The Act requires that government institutions shall, within thirty calendar days, give written notice to the requester in the following circumstances:

1. Excluded records: When access will be denied because the record(s) requested are excluded from the Act;
2. Method of access: When access will be given, by providing a copy of the records requested or by advising the requester that arrangements can be made for viewing the record, according to the conditions specified in subsection 8(3) of the Regulations and this chapter;
3. Extension: Any extension of time beyond the initial period of 30 days is grounds for complaint by the requester to the Information Commissioner. The notice to the requester is legally required to stipulate the length of extension required (where the extension is claimed under subsection 9(1)(a) or (b)), give an explanation of the reasons underlying the extension, and inform the requester of his or her right to complain to the Information Commissioner about the extension. A form letter describing the required content of these notices is provided in Chapter 3-7.
4. Fees: When fees will be required to be paid, the requester shall, in accordance with subsections 11(1), (2), (3), (4), (5) and 12(1) of the Act, be informed of the following:
   • an estimate of the total costs (where the estimate of total costs is exceeded by actual costs, departments should be prepared to absorb the difference. Conversely, where the estimate is greater than actual costs, departments must reimburse the requester accordingly);
   • the amount of deposit to be paid (if applicable) before the records are produced or prepared for disclosure;
   • an indication that the requester may examine the record(s) in person to save the cost of reproduction;
   • an indication that the requester may specify that only some parts of the record need to be reproduced;
   • an indication that the requester has the right to complain to the Information Commissioner if the fees are considered to be unreasonable (see Model Letter in Chapter 3-7).
5. Exemption: When access to the record(s) requested is refused in whole or in part the Act requires that the notice should state the specific exemption which applies or that the record does not exist or, where the government institution does not indicate whether the record exists, cite the specific provision of the Act on which the refusal was based or could reasonably be expected to be based if the information existed. Attention is drawn to the Federal Court decision, Information Commissioner of Canada v. Minister of National Defence (Court No. T-746-88) where it was held that reference is required only to the specific exemption provisions of the various sections of the Act and not to illustrative or descriptive paragraphs. Although it is not legally necessary to quote illustrative or descriptive paragraphs (e.g. in section 15) the Court found it a commendable practice to quote the section, subsection or paragraph whenever it is possible to do so. In keeping with the position of the Court, institutions should be as specific as possible in citing the reasons for refusing access to a requester.

   It is to be noted that, pursuant to subsection 10(2) of the Act, the government institution may, but is not required to, indicate whether or not the records(s) exist. (See Model Letters in Chapter 3-7). The law also requires that the requester be notified of the right to file a complaint regarding the decision with the Information Commissioner.
    

6. Third Parties: If the review identifies any third parties that may be affected by disclosure, notification is required to take place in accordance with the section on Third Party Intervention in Chapter 2-8.

Subsection 71(1) of the Act requires government institutions to provide facilities where the public may inspect manuals used by employees of the institution in administering or carrying out programs or activities. Subsection 71(2) provides for the exclusion from any manuals that may be inspected by the public of any information for which a government institution would be authorized to claim an exemption under the Act.

The availability of manuals (including directives, guidelines, instructions and procedural materials) and access material in institutional and major regional offices is based on the principle that public scrutiny of the internal operations and the decision-making process in government institutions is a vital objective of the Act. The decision to establish reading rooms should be based on what is reasonably practicable, i.e. the cost effectiveness in relation to the actual usage made of the facility.

It is suggested that reading rooms should be equipped with a copy of the Access to Information publications; general information for the public on how to obtain government information, including how to exercise their rights under the Access to Information Act and copies of the Access to Information Request Form. To help requesters identify the records they want, institutions are required by policy to have available lists of records which have been disclosed in whole or in part under the Act. In addition, government institutions may consider including any other finding aid to the information holdings of the institution (e.g. file indexes, publication lists) which are appropriate to their operations.

The facility may be part of another facility, e.g. the institutional library. In such cases signage should indicate the presence of the Reading Room.