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Processing AccessRequests Workshop
“In the Door, Out the Door”
Note: These slides are from a workshop first delivered by the Access and Privacy Branch, Ministry of Justice and Attorney
General of Saskatchewan in 2006 and 2007. The workshop is for employees responsible for processing access requests received
pursuant to FOIP or LAFOIP. These slides are for information purposes only. Please refer to
the legislation for purposes of interpretation.
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Please read first These slides are taken from an Access and Privacy Branch
workshop targeted at access officials in government institutions and local authorities in Saskatchewan subject to The Freedom of Information and Protection of Privacy Act and The Local Authority Freedom of Information and Protection of Privacy Act.
The workshop is designed to assist officials responsible for processing access requests received under the Acts.
The information in these slides is for training purposes only and is often shortened to headers, etc. It should not be relied upon for legal interpretation. Please consult appropriate legislation and, as required, legal counsel for full interpretations of the Act.
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Agenda Part I – Background Information Part II – First Steps after Receiving An Access
Request• Workshop Exercise One
Part III – Processing the Request• Workshop Exercise Two
Part IV – Records Review and Exemptions• Workshop Exercise Three
Part V – Finalizing the Request Part VI – Closing and Questions
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Objectives of workshop
1. Provide an overview of processing an access request from date of receipt to finalizing the request.
2. Three hands-on exercises.
3. Share experiences & answer questions.
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Terms used in presentation…
Referred to in presentation as..
The Freedom of Information and Protection of Privacy Act and Regulations:
- the FOIP Act
- the FOIP Regulations.
The Local Authority Freedom of Information and Protection of Privacy Act and Regulations:
- the LAFOIP Act-- the LAFOIP Regulations
An Access to Information request -- an access request-- freedom of information request-- FOI request
Provincial Government Institutions and Local Authorities - Public Bodies
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PART I: Background
Right of AccessWhat is a record?
Formal Requests
Duty to Assist
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Justice LaForest, Supreme Court of Canada
“The overarching purpose of access to information legislation—is to facilitate democracy. It does so in two related ways. It helps to ensure first that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.”
Justice LaForest [1997] 2 S.C.R. 403 Dagg v. Canada (Minister of Finance)
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FOIP:Rights of Access
FOIP and LAFOIP provide every person a right of access to records in the possession or under the control of a provincial government institution or a local authority, subject to certain exemptions.• See sections 5 of FOIP and 5 of LAFOIP
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FOIP:Definition of Record
Section 2(1)(i) of FOIP and 2(j) of LAFOIP define a record as:• “…a record of information in any form and
includes information that is written, photographed, recorded or stored in any manner, but does not include computer programs or other mechanisms that produce records.”
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Examples of Types of Records
documents letters handwritten notes papers draft documents e-mails sticky notes
journal books calendars vouchers maps (non-
published) drawings photographs
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FOIP:Duty to Assist The Office of the Information and Privacy Commissioner
(OIPC) has concluded that public bodies have a duty to assist all applicants when they apply for access to records.
This can include:• working with the applicant to identify what records they
actually would like to access;
• offering options when an access request will result in a large estimate of costs; and
• not defining access requests too narrowly. See OIPC Report Numbers:
• F-2004-003, F-2004-005
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FOIP/LAFOIP is Not Always Necessary
Encourage informal disclosure when appropriate.
FOIP/LAFOIP are formal processes – informal may be more appropriate.
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Recognizing a formal request
There are two types of formal requests:
• Access to Information Request form
• Written requests (not on the formal Access to Information Request form)
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Recognizing a formal request - Access to Information Request Form
Form “A” in the FOIP Regulations and Form “A” LAFOIP Regulations
Application form asks for:• contact information of applicant;
• public body request is directed to;
• name of the record; and
• details of the information being requested. Application Fees:
• No application fee under FOIP
• $20 application fee under LAFOIP See next two slides for prescribed forms
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Recognizing a Formal Request - Written Requests (Not on Formal Application Form) If it’s apparent the applicant is intending to file a formal access request,
you should accept it as a formal access request. Language to look for:
• freedom of information request• access to information request• request under The Freedom of Information and Protection of Privacy Act
If written request meets “Form A” requirements, accept the request as a formal request. Request should include:• contact information of applicant;• government institution request is directed to;• name of the record; and• details of the information being requested.
The Office of the Information and Privacy Commissioner (OIPC) will expect that these types of requests are accepted and fall within our duty to assist the applicant.
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You only have 30 Calendar Days
The clock starts ticking the day after it’s received in your government institution – all employees should be aware of this.• See section 7(2) of FOIP and LAFOIP, and
section 24(3) of The Interpretation Act, 1995
If the due date falls on a weekend or holiday, it moves to the next working day.• See section 24(1) of The Interpretations Act,
1995
See appendices: • Help With FOIP!! Access Request Checklist• FOIP / LAFOIP Process (Flow Chart)
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What’s been discussed so far…
Individuals have the right to access the records of public bodies.
What is a record and examples of a record. We have a duty to assist applicants. An access request is not always necessary. How to recognize a formal access request. There are important timeframes that must be
followed.
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PART II: First Steps after Receiving an Access Request
Log the
Request
Set up file
Heads up
Search
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First Steps
You’ve got a request – where to start?• Log the request.
• Set up a file.
• Provide “heads up”.
• The search should begin for the responsive records.
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First Steps:Logging the Request & Set up a File
Access Requests should be logged and have a file.
The file should contain all correspondence relevant to the Access Request.
See Appendix: Help with FOIP!!! Access to Information Requests: Logging and File Set Up
Access Request
File
JU01/07G
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First Steps:Providing a “Heads Up” A “heads up” e-mail may have the following
audience. Your process may routinely include:• Deputy Minster’s Office, President’s Office• Access Officer• Communications• Division Head responsible for information being requested• Branch Head or Program Manager responsible for the
information being requested In addition, the Access and Privacy Branch receives
the “Pink” copy (or a photocopy) of the access request. • Not applicable to Local Authorities.
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First Steps:Heads Up - Things to remember
The applicant’s name is usually personal information “Heads up” with the applicant’s name should be on a
need-to-know basis:• Share the applicant’s name only as needed to process the
request (e.g. – you will need to share the name with the program staff who need to find personal information requested by the applicant).
• Protect the applicant’s identity where appropriate. Retain documentation of how the “heads up” was
communicated (e.g. – copy of the request, an e-mail outlining the details of the requested information).
Heads up should be provided when the request is received.
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First Steps:Beginning the Search
Identify the area(s) of your government institution most familiar with the records being requested.
Discuss the request with branch/program area.
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First Steps:Access Requests are Serious You may need to remind everyone of the serious
nature of these requests. Public bodies have an obligation in law to respond to
the applicant. Ask questions along the way to ensure appropriate
steps are being taken:• Are fee estimates accurate?• Were all responsive records identified?• Did you search everywhere for responsive records?• Is there anything you can’t find?• Are the search efforts documented in detail?
Deadlines are important.
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Day One: What should have been accomplished?
The request should be logged.
The file should be set up.
“Heads up” should be provided.
The search should begin for responsive records.
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Workshop Exercise One
Receiving an access request:• assigning a file number;
• logging the request; and
• determining what positions should be provided with a heads up.
See handouts.
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PART III: Processing the Request
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29 Days Left – no need to rush, right?
WRONG!
Did you know that in 30 calendar days there are approximately 20 work days. Then you need to factor in EDO’s, SDO’s, STAT holidays, vacation.
YIKES – Better get to it!
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Next Steps:Further Discussions
Discuss access request with area responsible for responsive records.• Are the details of the request clear or will clarification be
necessary?• Will fees be necessary to process the request? For
example: • there will be a lot of work involved;• there will be a large search to locate the responsive records;
and/or• there will be costs to reproduce the responsive records (e.g.
photocopying, copies of photographs). These questions will need to be answered right
away.
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Are the details of the request clear?
“An applicant shall specify the subject matter of the record requested with sufficient particularity as to time, place and event to enable an individual familiar with the subject matter to identify the record.”• See section 6(1)(b) of FOIP and 6(1)(b) of LAFOIP.
If the records cannot be identified, clarification will be necessary.
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When clarification is necessary “Where the head is unable to identify the record requested, the
head shall advise the applicant, and shall invite the applicant to supply additional details that might lead to the identification of the record.”• See sections 6(3) of FOIP and 6(3) of LAFOIP.
When it is determined clarification is necessary ask yourself what additional details are required to help identify the record, then pick up the phone or write a clarification letter.• Document phone call and follow up in writing.• Sample clarification letter included in Model Letters package.
The clock stops when you ask for additional details.• “Where additional details are invited to be supplied pursuant to
subsection (3), the application is deemed to be made when the record is identified.”
• See sections 6(4) of FOIP and 6(4) of LAFOIP.
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Wait a second…these aren’t even our records! An application can be transferred within 15 days of receipt if it
is determined another public body has a greater interest in the records being requested. • LAFOIP provides for a transfer to another local authority or
government institution; • FOIP provides for a transfer to another government institution.
• See sections 11(1)(a) and (b) of FOIP and 11(1)(a) and (b) of LAFOIP. Greater interest in a record is determined if:
• the record was originally prepared in or for the public body; or• the public body was the first to obtain the record or a copy of the
record.• See sections 11(2)(a) and (b) of FOIP and 11(2)(a) and (b) of LAFOIP
Consider contacting the applicant prior to transferring the application.
Sample transfer letter included in Model Letters package.
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Identifying the record:Locating the responsive records
Once details of the requested information is clear – locate the records.
This may include:• searching electronic records (e.g. - e-mails,
databases);
• searching files (e.g. – central filing cabinets, files in offices); or
• searching offsite or secondary storage facilities (e.g. - Government Services Records Centre, storage rooms, boxes in basements).
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You said “What’s a record?”
A record includes anything received or produced by you in the course of your work.
This includes:• sticky notes
• e-mails
• draft documents
• handwritten notes
• black journals/meeting books
• etc, etc, etc…
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There sure are a lot of records… Some activities involved in complying with the
request may include:• gathering records• providing third party notification• copying records• severing records
This is going to take a lot of time and money. You may need to consider:
• providing the applicant with an estimate of costs; and/or
• extending the response period for the application.
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When fees are necessary to process the request
Determine how big the request is.• Ask those familiar with the requested information what it will
take to comply with the request.
• Does the request involve a lot of records?
• Will a search be necessary?
• How many copies will there be?
Decide early if the estimate of costs will be necessary.
LAFOIP requires a $20.00 application fee.
• see section 5(1) of the Regulations.
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Fees for access / waiver of fees
Public bodies can charge fees for access.• Sections 9 of the FOIP Act and 9 of the
LAFOIP Act The fee schedule can be found in the
regulations.• Sections 6 of the FOIP Regs and section 5 of
LAFOIP Regs Fees for access must be charged, but can
be waived. See sections:• 9(5) of the FOIP Act and 9 of the FOIP Regs
• 9(5) of the LAFOIP Act and 8 of the LAFOIP Regs
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When fees are necessary - estimates If fees will exceed $50.00, a cost estimate is necessary and the total
fees charged cannot exceed the initial estimate of costs.• FOIP - sections 9(2) of the Act and 7(1) of the Regs.• LAFOIP – sections 9(2) of the Act and 6(1) of the Regs.
Consider providing the applicant with an estimate letter or heads up if the fees will be less than $50.
A public body can require a deposit of up to 50% of the estimate• FOIP - section 9(4) of the Act• LAFOIP – section 9(4)
The applicant pays the actual cost when the estimate is more than the actual cost• FOIP - section 7(2) of the Regs.• LAFOIP – section 6(2) of the Regs.
Fees cannot be charged for full denials• FOIP - section 8 of the Regs.• LAFOIP – section 7 of the Regs.
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Fee Estimates:Required Components Detailed explanation of the fees is important.
The following components should be considered for a cost estimate letter:• time required to search for records (perhaps break out paper and
electronic);• time to prepare records for disclosure; and• other costs – including number of photocopies, cost of
photographs, etc.
Cost estimate letter should address any fee waiver requests (if not done already)
See OIPC Report No. F-2005-005, F-2007-001
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Estimate of Costs Form
This form is not prescribed in the regulations – administrative only
Sample Estimate of Costs Letter and two estimate of costs forms are included in Model Letters package.
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Estimate of Costs - The Clock Stops
Response time is suspended when an estimate letter is sent.
Response time resumes when the applicant notifies you that he/she wants to proceed with the request and pays any deposit required.
• See section 9(3) of the FOIP Act and 9(3) of LAFOIP.
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This is going to take more than 30 days to complete… FOIP/LAFOIP allows for an extension of up to 30 additional days, in
limited circumstances. To invoke a time extension, one of the following situations must apply:
• large number of records or search through large number of records and work would otherwise interfere with the operations of the public body
• Sections 12(1)(a)(i) of FOIP and 12(1)(a)(i) of LAFOIP
• there are a large number of requests and work would otherwise interfere with the operations of the public body
• Sections 12(1)(a)(ii) of FOIP and 12(1)(a)(ii) of LAFOIP
• consultations are necessary which cannot be completed within the original 30 days
• Sections 12(1)(b) of FOIP and 12(1)(b) of LAFOIP
• third party notice is required• Sections 12(1)(c) of FOIP and 12(1)(c) of LAFOIP.
See OIPC Report No. F-2006-003 and F-2006-005 Sample Extension of Time Letter included in Model Letters package.
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What’s been done so far?
Clarified request (if necessary). Found responsive records. Estimated/collected deposit (if
necessary). Extended response time (if necessary). It’s time to:
• review all responsive records; and
• prepare notification letters.
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Workshop Exercise Two
Calculate an estimate of costs to process the access request.
See handouts.
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PART IV: Records Review and Exemptions
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Records Review
FOIP/LAFOIP are about providing access to records, but some information may be exempt from release.
There are exemptions in the Act:• mandatory; and
• discretionary.
Line-by-line review of responsive records.
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Two Main Types of Exemptions
Mandatory Exemptions
The “head” cannot disclose the information.
The wording, “a head shall refuse access…” will be used.
Discretionary Exemptions
The “head” must decide if the information can be disclosed.
The wording, “a head may refuse access…” will be used .
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Mandatory Exemptions Note: Below are titles only. Please consult the Act for complete wording of each provision before attempting to apply these exemptions.
Records from other governments (FOIP, s. 13; LAFOIP, s. 13)
Cabinet Documents (FOIP, s. 16; not in LAFOIP)
Third party information (notification to third party may be required) (FOIP, s. 19; LAFOIP, s. 18)
Also consider protection for personal information about an identifiable individual (FOIP, s. 29; LAFOIP, s. 28; HIPA, ss. 27, 28, 29)
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Discretionary ExemptionsNote: Below are titles only. Please consult the Act for complete wording of each provision before attempting to apply these exemptions.
Information received in confidence from a local authority (FOIP, s. 13(2); not in LAFOIP)
Information injurious to intergovernmental relations or national defense (FOIP, s. 14; not in LAFOIP)
Information regarding Law Enforcement and Investigations (FOIP, s. 15; LAFOIP, s. 15)
Documents of a local authority (not in FOIP; LAFOIP, s. 15) Advice from Officials (FOIP, s. 17; LAFOIP, s. 16) Economic and other interests (FOIP, s. 18; LAFOIP, s. 17) Testing procedures, tests and audits (FOIP, s. 20; LAFOIP, s. 19) Danger to health or safety (FOIP, s. 21; LAFOIP, s. 20) Solicitor-client privilege (FOIP, s. 22; LAFOIP, s. 21)
Also consider confidentiality provisions in other enactments (FOIP, s. 23; LAFOIP, s. 22)
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Applying exemptions to an access request When denying access to records in part or in full – quote all applicable
exemptions.• If more than one exemption applies – apply it.
Discretionary Exemptions:• When conducting a review, the OIPC will only consider a discretionary exemption if it
was invoked at the time access was denied to the applicant.
Mandatory Exemptions:• When conducting a review, the OIPC will apply a mandatory exemption if it was
missed by a government institution at the time access was denied to the applicant.
See Appendices: • Help with FOIP!!! What to Look for When Reviewing a Record for Release under
FOIP• Help with FOIP!!! What to Look for When Reviewing a Record for Release under
LAFOIP
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One of Three Scenarios During Records Review
1. Full Disclosure of Records
2. Partial Denial of Records
3. Full Denial of Records
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Full Disclosure
Make two copies of the original responsive records:
• one is for the applicant; and
• one is for your access request file. Prepare notification letter. Sample Full Disclosure Letter included in
Model Letters package.
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Partial Denial
Some of the records responsive to the applicant’s request may not be releasable:• Portions may be withheld in full or withheld in
part.
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Severing Records “Where a record contains information to which an
applicant is refused access, the head shall give access to as much of the record as can reasonably be severed without disclosing the information to which the applicant is refused access.”• See section 8 of FOIP and 8 of LAFOIP.
If there is information in the record that will not be disclosed, you sever the exempt information rather than deny access to that record in full.
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Severing Tips:Some useful items to have on hand
removable cover-up tape black markers scissors white out blackout text electronically
if you plan to print and disclose the paper record.
pens (for section notations)
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Useful Severing Methods CAUTION!!! When severing information, make sure the
information cannot be read. You can do this by:• holding the photocopies up to the light and checking to see if you
can still see the severed words; and
• have someone else look at the documents.
Always make sure a photocopy - not the original severed copy - is sent to the applicant!
If disclosing electronic records – make sure any severing cannot be electronically reversed by the applicant.
See Appendix: Samples of Severing Paper and Electronic Records
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Quote the Section FOIP requires that an applicant must be informed why information is
being refused in part or in full. If you are severing information from responsive records you should:
• quote the specific exemption provision beside what’s being severed (e.g. – subsection 29(1) of FOIP – personal information); and
• where appropriate, create an index for the applicant. The index can include:
• a listing of sections being invoked; and• an explanation of what each section is and where the exemption(s) apply.
Include an index if it makes sense for the specific circumstance (see next slide for sample).
Sample Partial Denial Letter included in Model Letters package. See OIPC Report No. F-2006-003.
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Sample Index
Page # Section(s) of FOIP Cited
Reason
1 29(1) Severed – personal information of an identifiable individual
2 16(1)(a), 22(c) 16(1)(a) applies to full page – policy options for members of Executive Council to consider.
22(c) applies to portions of the page as advice from legal counsel.
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When a request is fully denied
Review of records shows that access request will be denied in full.
If more than one exemption applies – quote all exemptions.
A response is required even if the records are fully denied.
Sample Full Denial Letter included in Model Letters package.
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What’s been done so far? Clarified request (if necessary). Found responsive records. Collected fees (if necessary). Prepared an extension letter (if necessary). Reviewed the records.
• Identified exempt records (if any).• Severed any necessary information.
Prepared notification letters. It’s time to finalize the request, which includes:
• routing for signature; and• sending response to applicant.
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Workshop Exercise Three
Review records for disclosure and identify information exempt from release (if any).
See handouts.
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PART V: Finalizing the Request
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Finalizing the Request:Out the Door The access request is ready
to go. The following has been
completed:• the records are prepared for
release;
• legal opinions have been sought (if necessary); and
• the notification letter is ready.
Time to route for approval and Access Officer’s signature.
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Routing Request for Sign-Off Allow a few days at this stage. There is not a standard list, but you might consider
the following:• the program manager
• division head/vice president
• Communications Office
• Deputy Minister/President’s/CEO’s Office
• Access Officer Make the approval process work for your
organization and limit it to those who need to know. Keep the approval process as simple as possible.
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Sending to applicant
Access Officer has signed off and the response is ready to go.
Last things to consider:• mark the envelope “Confidential” to applicant;
• determine best way to send to applicant (e.g. – mail, courier, make arrangements for applicant to pick-up); and
• ensure copies of all correspondence have been retained on your access file for the particular request.
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The access request is complete, right?
The access request is complete, is a Request for Review possible? Yes!!
Applicant has one year from the date of the final notification letter to request a review to the Office of the Information and Privacy Commissioner• See section 49 of the FOIP Act.
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Grounds for Review to the Commissioner
Grounds for review include:• “…an applicant is not satisfied with the decision of a head
pursuant to section 7, 12 or 37.” see section 49(1)(a) of FOIP Act
• “…a head fails to respond to an application for access to a records within the required time.” see section 49(1)(b) of FOIP Act
• “…an applicant requests a correction of personal information pursuant to clause 32(1)(a) and the correction is not made.” see section 49(1)(c)of FOIP Act
There are also provisions to Request a Review when third party notification is necessary.• See section 34 to 37 of the FOIP Act
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The Office of the Information and Privacy Commissioner
Information and Privacy Commissioner:• R. Gary Dickson, Q.C.
• Access Request Review Reports• recommendations of the Commissioner
available at www.oipc.sk.ca
Consider his recommendation reports as you:• respond to access requests; and
• prepare submissions for a formal review.
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PART V: Closing and Questions
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Lots of Information – Some things not covered
Time did not permit enough time to cover everything.
Contact our office whenever you have questions.
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Appendices for this Workshop
FOIP Act and Regulations – available from the Queen’s Printer
Help With FOIP!! Access Request Checklist Help With FOIP!! Access Request Checklist: Third
Party Notification Required FOIP / LAFOIP Process (Flow Chart) Help With FOIP!! Access to Information Requests:
Logging and File Set Up Help With FOIP!! What to Look for When Reviewing
a Record for Release Under FOIP Samples of Severing Electronic and Paper Records Help With FOIP!! Model Letters – Access to
Information Requests
Access Tools
Look for Resources and Tools on the APB web site : www.justice.gov.sk.ca/accessandprivacy
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Useful Websites
Access and Privacy Branch• www.justice.gov.sk.ca/accessandprivacy
Office of the Information and Privacy Commissioner• www.oipc.sk.ca
Office of the Queen’s Printer• www.qp.gov.sk.ca
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Contact Information
Access and Privacy BranchMinistry of Justice and Attorney General1020 – 1874 Scarth StreetRegina SK S4P 4B3
Ph: (306) 787-5473Fax: (306) 798-4064E-mail: [email protected]
Web site: www.justice.gov.sk.ca/accessandprivacy
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