FOIPP Act Policy and Procedures Manual

Summary Section Reference Policy Interpretation Sectional Index of Commissioner's Orders

Section 4 establishes the public’s information rights and the key access principle of the Act: the public has a right of access to all records in the custody or under the control of public bodies.  That right does not extend to information excepted from disclosure under Division 2 of Part 2 of the Act.  This includes the right of individuals to personal information about themselves.  

Section 4(2) establishes the obligation of a public body to review requested records line-by-line and to release any and all information not subject to exception under the Act, if the excepted information can reasonably be severed.

SECTION REFERENCE

Section 4 of the Freedom of Information and Protection of Privacy Act

4 (1) A person who makes a request under section 5 has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant.

(2) The right of access to a record does not extend to information excepted from disclosure under Division 2 of this Part but if that information can reasonably be severed from a record an applicant has the right of access to the remainder of the record.

(3) The right of access to a record is subject to the payment of any fee required under section 75.

POLICY

1. Public bodies shall respect the public’s right of access and operate in an atmosphere of honesty and openness. 

2. When a public body receives a formal request for access to records, the public body must consider all responsive records in its custody or under its control as available to the requester, unless the head determines that the requested records contain information that falls under one or more exceptions to disclosure listed in Division 2 of Part 2 of the Act.

   Interpretation Note 1

3. Public bodies are not required to release information they are authorized to withhold under Division 2 of Part 2 (sections 12 through 22.1) of the Act.
    

4. Public bodies must review requested records line-by-line and sever only the portions of the records protected from disclosure under Division 2 of Part 2 (sections 12 through 22.1) of the Act.

   Interpretation Note 2

5. The Act and regulations do not limit in any way access to information, other than personal information, that has been routinely available in the past.
    

6. Section 3 of the Freedom of Information and Protection of Privacy Regulation, BC Regulation 323/93, provides for the conditions under which public bodies may accept requests from persons acting on behalf of young people and others.  
    

7. Public Bodies are not required to create records to respond to formal requests (except where required under section 6(2)).  Section 4 applies only to records already in existence.  It does not apply to records which will or may be created in the future. 
    

8. Public bodies may charge fees in accordance with section 75.

Interpretation Note 3

INTERPRETATION

Interpretation Note 1 (Subsection 4(1)):

Examples of "Custody" and "Control"

• Semi-active records of a public body, held in contracted off-site storage by the British Columbia Archives (BCA) are under the control of the public body, not BCA, even though they are in BCA's custody.
   

• Inactive or archival records of a public body that have been transferred to BCA, under an approved records retention schedule, are in the custody and under the control of BCA, not the public body.
   

• Where public body A stores records on behalf of public body B due to B's office space restrictions, A does not have "custody" of B's records if access to the records is restricted to B's personnel.
   

• Constituency records of a minister kept separate from ministerial records are not in the custody or control of the ministry.
   

• Records kept by a union shop steward at his place of work, that relate only to his or her shop steward function, are not in the custody or under the control of the public body even though they are stored on the premises of the public body.
   

• Official journals or "black books" of public employees are in the custody of the public body.  Personal information not related to the duties as an employee of the public body is severed before disclosure.
   

• Records produced by legal counsel at Legal Services Branch, Ministry of Attorney General, acting as legal counsel to a public body, are under the control of the public body, but will also be in the custody or control of the Ministry of Attorney General. This includes legal opinions.
   

• A legal opinion produced by a lawyer from a private law firm acting as legal counsel for a municipality is under the control of the municipality.
   

• A management consulting firm is retained to report on the management of a public body.  Records that the public body requires for its operational needs remain in the control of the public body, even where they are in the custody of the consulting firm.
   

• An agency that is funded by government grants is not a public body, but the agency's records may be in the custody and, in this example, under the control of a public body if the public body has possession of and has assumed responsibility for the agency's records.
   

• Where a public body's databases contain government information mixed with information provided by a third party, the third party's information is in the custody and control of the public body.  Applicants may request access to the third party's information held by the public body (the section 21 exception may apply).
   

• Log books kept by volunteer firefighters for a municipality are under the control of the municipality.

"Reasonably be severed" means that after the excepted information is removed from a record, the remaining information is both intelligible and responsive to the request.  See Severance.

Proper severance ensures public bodies meet their obligation to provide records responsive to a formal request and promotes the information rights of applicants. Any doubts about whether the remaining information is understandable are generally resolved in favour of release. Occasionally, however, records cannot reasonably be severed, because the remaining information is unintelligible.  In those circumstances, all the information should be severed. 

Section 75(3) provides that fees may not be charged for an applicant’s own personal information. However, where another act expressly provides that fees may be charged for access to personal information, an applicant may not avoid payment of these fees by submitting a formal request under the Act. 

Example

• Procedures and fees for access to vital statistics information are established by regulation under the Vital Statistics Act.
  

SECTIONAL INDEX OF COMMISSIONER'S ORDERS

For orders organized by the Act's section numbers, Click here.

For a summary of the Commissioner's orders and policy interpretation of key points, Click here.