FOIPP Act Policy and Procedures Manual

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

Section 20 is a discretionary exception which allows the head to refuse to disclose information which is currently available for purchase by the public or which will be released to the public or available for purchase by the public within 60 days of the request.

SECTION REFERENCE

Section 20 of the Freedom of Information and Protection of Privacy Act

20 (1) The head of a public body may refuse to disclose to an applicant information

(a) that is available for purchase by the public, or

(b) that, within 60 days after the applicant’s request is received, is to be published or released to the public.

(2) The head of a public body must notify an applicant of the publication or release of information that the head has refused to disclose under subsection (1) (b).

(3) If the information is not published or released within 60 days after the applicant’s request is received, the head of the public body must reconsider the request as if it were a new request received on the last day of the 60 day period, but the information must not be refused under subsection (1)(b).

SUMMARY

Section 20 gives the head discretion to refuse to disclose information which is currently available for purchase by the public.

Section 20 gives the head discretion to decide whether or not to withhold information that will be published or released within 60 days of the applicant's request. If the information is to be published or released within this time period, then the head must notify the applicant of the relevant details regarding its publication or release.

If section 20 is applied to information that is expected to be published or released, and the publication or release does not occur within 60 days, the applicant's request must be treated as a new request received on the last day of that period.  Section 20 may not be used a second time to refuse disclosure of information that has already been withheld from an applicant under this section.

POLICY

1. If an applicant requests a record that is available for purchase by the public, the public body shall treat the request as a routine release of information and direct the applicant to the appropriate source for purchase of the record.  The applicant may request a review of this decision by the Information and Privacy Commissioner.
    
2. When the head of a public body notifies an applicant of the publication or release of information that the head has refused to disclose under paragraph 20(1)(b), the head is required to inform the applicant: 

• the date that the information requested by the applicant will be published or released; 
  
  
• the specific location where the applicant will have access to the information once it has been published or released; 
  
  
• that the applicant has a right to request a review by the Information and Privacy Commissioner of the decision to apply section 20 to the records requested;
  
  
• all other information that the head is required to provide the applicant under paragraph 8(1)(c) 

3. If the requested information is not published or released within 60 days, the public body must treat the request as a new request, received on the 60th day and must not deny this new request a second time under paragraph 20(1)(b).

PROCEDURE

1. Preliminary examination

2. Line by Line Review
   
   If line by line review determines that the information in the record is not available for purchase by the public, nor expected to be published or released within 60 days, the exception does not apply.  Recommend to the head that the record be released, unless another exception applies.

3. Exercise of Discretion

4. Inform the Applicant of the Decision
   
   Where the information is available for purchase by the public, notify the applicant that the information is routinely available and indicate where they may obtain a copy.

• Letter 20-1:  Notice to Applicant Requested Information is Available for Purchase by the Public

If the head of the public body is refusing access to the records under section 20, the head must inform the applicant of the right to request a review by the Information and Privacy Commissioner.

Where the information will be published or released within 60 days of receipt of the request, notify the applicant in writing of the expected release date, and, if possible, where they may obtain a copy.  Ensure that the public body has custody or control of a copy of the requested information and is prepared to publish or release it within the 60-day time period when access is denied under section 20(1)(b).

• Letter 20-2:  Notice to Applicant Information is to be Published or Released to the Public within 60 Days

5. Reconsider the Request
   
   If a public body decides to withhold all or a portion of a record that contains information that will be published or released within 60 days, and the information is not published or released within this time, then on the last day the head must reconsider the request as if it were a new request received on the last day of that period.  The 60^th day must then be considered the date that the applicant’s request was received by the public body.  When the applicant’s request is considered a new request as described above, section 20(1)(b) must not be used a second time to except information from the record requested by the applicant.

INTERPRETATION

Interpretation Note 1:

The information must be for sale in a manner that is obtainable and accessible for purchase by the public.  (See Order No. 91-1996 - summary).

Where the information is available for purchase by the public, the public body notifies the applicant where to purchase the information, if possible.

The "public" means the body of people at large [Black's].

Examples

• Government publications that are readily available for purchase at Crown Publications.
  
  
• Some government publications are available at university book stores or other retail sources.
  
  
•  Articles that appear in commercial journals.  See Order No. 235-1998.
  
  
• Commercially available syndicated polls, such as the Decima quarterly reports.

Interpretation Note 2:

Released to the public

"Released" means to have made information available "to the public" without charge.  Release can occur actively through distribution of information to the public or passively by providing information to the public at specific locations.

Examples

• BC Ferry Corporation schedules
  
  
• Social benefit application forms
  
  
• Public information brochures and pamphlets.
  

Must reconsider the request as if it were a new request received on the last day of that period

"Must reconsider the request as if it were a new request" means that if 60 days has elapsed since the receipt of a request to which paragraph 20(1)(b) has been applied, then, under subsection 20(3) the request shall be re-activated or logged as a new request.  The 60^th day must then be considered the date that the applicant’s new request was received by the public body.  The standard 30-day deadline for responding under section 7 (Time limit for responding) applies to the newly logged or re-activated request.

But the information must not be refused under
subsection (1)(b)

If the applicant’s request is considered a new request, paragraph 20(1)(b) cannot be used a second time to except information from the record requested by the applicant.

Example

• A Ministry commissions a report on pollution levels in a lake.  A request is received for this report.  The Ministry expects to release the final version of the report within 60 days.  A request for the report would be denied under paragraph 20(1)(b).  If the ministry decides not to release the final version or the release date is postponed beyond 60 days from the request date, the Ministry considers the original request as a new request and responds promptly by releasing the report, subject to other exceptions that may apply.

SECTIONAL INDEX OF COMMISSIONER'S ORDERS

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

APPENDICES

LETTERS:
20-1:  Notice to Applicant Requested Information is Available for Purchase by the Public
20-2:  Notice to Applicant Information is to be Published or Released to the Public within 60 Days