FOIPP Act Policy and Procedures Manual

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

Section 5 describes how to make a formal request for a record under the Act and provides that an applicant may ask for a copy of the record or to view the record.

SECTION REFERENCE

Section 5 of the Freedom of Information and Protection of Privacy Act

5 (1) To obtain access to a record, the applicant must make a written request that

(a) provides sufficient detail to enable an experienced employee of the public body, with a reasonable effort, to identify the records sought,

(b) provides written proof of the authority of the applicant to make the request, if the applicant is acting on behalf of another person in accordance with the regulations, and

(c) is submitted to the public body that the applicant believes has custody or control of the record.

(2) The applicant may ask for a copy of the record or ask to examine the record.

POLICY

1. A formal freedom of information request is any written request for access to a record where the public body has not made a prior determination that the record is available through routine channels.  The Act does not replace existing procedures for access or limit in any way access to information that is available to the public outside the Act.
   

2. Although section 5 requires a request under the Act to be in writing, the Lieutenant Governor in Council (Cabinet) is authorized under paragraph 76(2)(b) of the Act to make regulations that permit prescribed categories of applicants to make requests orally rather than in writing.  An oral request is permitted under section 2 of the Freedom of Information and Protection of Privacy Regulation when the applicant has a limited ability to read and write English or where a physical disability impairs the applicant’s ability to make a written request

   Interpretation Note 1

3. Although section 5 requires a request under the Act to be made in writing, it does not require applicants to provide a telephone number, address, or even their name when making a request.  In those rare cases when this occurs, a public body may have problems in processing the request and meeting the applicant's information needs.

4. An applicant is not required to submit a written request under the Act in any particular form.  An applicant may write a letter or submit a Request for Access to Records Form to the public body that the applicant believes has custody or control of the record containing the requested information. A request may also be made by electronic mail (email), further to section 5 of the Electronic Transactions Act which provides that a requirement under law that a record be in writing is satisfied if the record is both in electronic form and accessible in a manner usable for subsequent reference.

5. An applicant can direct a formal request for records under the Act to either the Information and Privacy Unit or to any program area of the public body where the applicant believes the records to be.

6. An applicant is not required to refer to the Act in the request.

7. The Act permits an individual to request access to a record.  It does not permit an applicant to seek information or an answer to a question.

   Interpretation Note 2

8. An applicant may request to view a record rather than receive a copy of the record.  Such a preference should be stated in the formal request for access to the record.  If applicants do not specify that they wish to view a record, the public body may assume that they wish to receive a copy of the record.

9. The right of access to a record may be exercised on behalf of another person in accordance with section 5(1)(b) of the Act and section 3 of the Freedom of Information and Protection of Privacy Regulation.  Section 5(1)(b) of the Act requires the applicant to provide written proof of the authority of the applicant to make the request.

   Interpretation Note 3

10. How a public body provides access to a record is dealt with by section 9 of the Act.

PROCEDURE

1. Public bodies are encouraged to discuss the request with the applicant, narrowing and clarifying the request as appropriate. This will help avoid delays in responding to vague requests and may reduce the amount of any applicable fees charged under section 75.

2. Public bodies should inform the applicant, in writing, of the receipt of the request.

• Letter 5-1:  Acknowledgement of Receipt of Access Request – General Request
  
  

• Letter 5-2:  Acknowledgement of Receipt of Access Request – Personal Request
  
  

• Letter 5-3:  Acknowledgement of Receipt of Access Request – Correction Request

3. Where records are routinely available, the request is not processed formally even though the applicant specifically mentions the Act.  The public body informs the applicant that the requested records are routinely available and provides the applicant with the records or states where the records may be found.  If the records are not routinely available the public body processes the request as a formal request under the Act.

4. A public body may combine several requests from one applicant into a single request or split a single request into several requests, if appropriate.

5. When applicants appear to be seeking access to their own personal information, a public body should take appropriate steps to verify identity.

Interpretation Note 4

INTERPRETATION

Interpretation Note 1 (Section 5(1)):

Situations when it would be appropriate for a public body to permit oral requests .

Examples

• An applicant can only write in Braille and the public body does not have access to services that would assist in reading Braille script.
  

• An applicant with certain muscular disabilities cannot type or hold a pen.
  

• An applicant has a limited ability to read and write in English.

Applicants who are hearing impaired may use the message relay centre at Telus to place calls.  Information on this service is available in local public telephone directories.

Interpretation Note 2:

Some requests contain a combination of questions and requests for records. The Information and Privacy Units of public bodies respond to the Freedom of Information (FOI) requests and generally refer the questions to the Communication/Public Affairs offices.  Questions, even if submitted on the FOI request form, are not FOI requests; the Act provides access to records only.

Interpretation Note 3 (Section 5(1)(b)):

Although section 3 of the Freedom of Information and Protection of Privacy Regulation provides that a “parent” may exercise the right of access to a record on behalf of an individual under 19 years of age who is incapable of exercising the right, decisions of the Office of the Information and Privacy Commissioner have interpreted “parent” as meaning “custodial parent” in cases of parental separation.  Other decisions have found that an individual purporting to exercise the right of access to a record on behalf of an another is required to be truly acting "on behalf of" that other person as opposed to acting for their own personal motives.

Interpretation Note 4 (Sections 5(1) and (2)):

As a preliminary step, the public body always compares identifying information on the request form with the information in their possession.  Spelling of name, address, telephone number, signature, handwriting, etc. are reviewed and compared with the information on file.  Public bodies take at least one additional step to verify the identity of the requester.  The nature of this step will vary given the particular circumstances of the request and the public body involved.  It may involve questioning the requester on unique personal information contained in the record itself. For example, a public body may request the applicant's personal health number before disclosing a medical record. 

Where a public body has significant doubts about the applicant's identity and sensitive personal information is involved, the public body may require personal attendance and the presentation of photo identification. Requiring personal attendance may create a barrier to access for those who are immobile, have no means of transportation or who live in rural areas.  As well, some individuals may not have photo identification or identification with a signature.  Public bodies should only use these processes when the sensitivity of the requested records warrants this level of identity verification and should have alternate verification methods available if the requirement for attendance and photo or signature identity cards cannot be met.

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.

APPENDICES

LETTERS:
5-1:  Acknowledgement of Receipt of Access Request - General Request
5-2:  Acknowledgement of Receipt of Access Request - Personal Request
5-3:  Acknowledgement of Receipt of Access Request - Correction Request

FORM:
Request for Access to Records Form