Section 6 - Duty to assist applicants

• Overview
• Section Reference
• Policy
• Summary
• Interpretation
• Sectional Index of Commissioner's Orders
• Return to Manual Table of Contents

Overview

Section 6 establishes a duty for the head of a public body to assist applicants and to respond openly, accurately, completely and without delay.

It also sets out the circumstances in which a public body is required to create a new record to respond to an access request.

Section Reference

Section 6 of the Freedom of Information and Protection of Privacy Act

6 (1) The head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately, and completely.

(2) Moreover, the head of a public body must create for an applicant a record to which section 4 gives a right of access if

(a) the record can be created from a machine-readable record in the custody or under the control of the public body using its normal computer hardware and software and technical expertise, and

(b) creating the record would not unreasonably interfere with the operations of the public body.

Policy

• Upon receiving a request under the Act, the public body must cease all final disposition actions pertaining to the records requested, including destruction or transfer activities.
   
• If the public body and the applicant agree to amend the wording or scope of a request, the public body must document the applicant’s agreement to the amendment.

Summary

Subsection 6 (1): Duty to Assist

Subsection 6 (1) of FOIPPA outlines the public body’s “duty to assist” applicants throughout the processing of an access request. Although the legislation frames it as an obligation of the head of the public body, it can only truly be fulfilled through the efforts of all employees involved in the processing of an access request. It is a general obligation for the public body to make a reasonable effort at all stages of the processing of a request.

There is no singular procedure for how a public body fulfills the duty to assist but it includes actions like interpreting the request fairly or clarifying the scope and intent if necessary, conducting a comprehensive search for records, applying exceptions fairly, and adhering to the Act’s timelines.

Put another way, 6 (1) makes it clear that public bodies must not frustrate the public’s right to access through negligence, administrative delays, or excessive severing.

In responding to an applicant’s request for information, the duty to assist obliges the head of the public body to defer to the applicant’s wishes, if practicable, but does not require the public body to make unreasonable efforts to satisfy an applicant’s request for information. 

Common issues related to section 6 include:

Timeliness of Response

6 (1) requires the head to respond “without delay”. At minimum, this means adhering to the timelines which are set out in more detail in section 7 of FOIPPA and not extending the timeline unless authorized under section 10.

Adequacy of Search

6 (1) requires the head to respond “completely”. If the public body has not adequately searched for or located responsive records, this will result in an incomplete response.

The duty to assist obliges public bodies to meet a threshold of reasonableness in conducting adequate searches for records.  The burden of proof is on the public body to show that it has conducted an adequate search.  Public bodies should document the efforts made to respond to a request and be prepared to demonstrate where and how a search for records was carried out.

"Every reasonable effort" is an effort which a fair and rational person would expect to be done or would find acceptable.  The use of "every" indicates that a public body’s efforts are to be thorough and comprehensive and that it should explore all avenues in verifying the completeness of the response.

Working with applicant in good faith

6 (1) requires the head to respond “openly”.

The duty to assist obliges public bodies to work with applicants in a forthcoming and collaborative spirit.

Employees of public bodies and applicants should work together rather than in opposition: both parties have an interest in the efficient, timely processing of requests.  The access "partnership" between public bodies and applicants covers both the formal rights and duties under the Act and more informal communication during the request process.

In some cases, the public body and the applicant may jointly decide that some or all of the applicant's request is satisfied by routinely available records.

Interpretation of requests

6 (1) requires the head to respond “accurately”. A prerequisite to fulfilling this portion of the duty to assist is that the public body understands the request and interprets it in a manner that a fair and rational person would consider appropriate in the circumstances. This typically involves avoiding interpretations that would make the request overly narrow.

If the public body has any uncertainty about the interpretation of a request, they should contact the applicant and ask for clarification or assist them in better defining their request. An applicant’s request may be vague or overly broad, for instance, because of a lack of knowledge of the public body’s mandate or structure.  Without assistance from the public body, applicants may not be able to specify what records would satisfy their needs.

Section 6 (2): Creation of Records

The Act is not limited only to electronic records that already exist such as an email, Word document, or PDF file. Subsection 6 (2) is intended to recognize that information will also exist within a public body’s broader electronic systems such as information or records stored in a database or computer program. If a record sought as part of an access request can reasonably be produced from an electronic system, subsection 6 (2) obligates the public body to create that record.

This requirement is subject to some limitations:

• the underlying records must be machine-readable, and in the custody or control of the public body
• producing the record must be possible using normal computer hardware and software
• producing the record must be possible using normal technical expertise of employees; and
• producing the record must not unreasonably interfere with the operations of the public body

"machine readable record" means anything upon which information is stored or recorded such that a computer or other mechanical device can render the information intelligible.

"normal computer hardware and software and technical expertise" means the computerized data processing equipment, accompanying software programs and in-house technical staff employed by the public body on a daily basis.

"Unreasonably interfere"

In deciding whether creating the record would unreasonably interfere with its operations, the public body assesses the time and resources which would be required to create the record and the impact which this use of resources would have on its day-to-day activities.

See the Interpretation Note below for more information about how the OIPC has considered this issue in past orders.

Interpretation

Interpretation Note: OIPC orders on 6 (2)

Existing OIPC orders that contemplate subsection 6 (2) each rely on a unique set of facts and are therefore difficult to generalize.

The OIPC has recognized that electronic systems do not spontaneously produce records in the absence of human intervention. Some amount of input, adjustment or reconciliation by an employee of the public body will typically be required to produce an intelligible record from the electronic system. The issue in dispute often revolves about whether this manual work unreasonably interferes with the public body’s operations. Each situation is evaluated in this respect based on the volume and complexity of manual processing required to produce the requested record, along with other contextual factors.

Some notable past OIPC orders on the topic include:

• In Order F21-07, the OIPC considered a request seeking lists of files stored on electronic devices used by government ministers. The OIPC adjudicator required government to create a custom computer program to create the requested record. The adjudicator found that the creation of the program could be accomplished using the normal equipment and technical expertise of the public bodies, and that doing so would not unreasonably interfere with its operations.
• In Order F10-30, the OIPC considered a request seeking a record – in electronic database form - containing the name, title, department, salary and expenses of every employee of the BC government who earned more than $75,000 in the most recent fiscal year. Government argued that there was no single underlying machine-readable record that could produce a record containing all of the requested fields. Creating the requested record would involve linking the output of multiple databases in the absence of any common identifiers between the databases. The OIPC found that the public body was not required to create the requested record.
• In Order 03-16, the OIPC considered a request seeking an electronic copy of a database used for compliance and enforcement in the forestry sector. Due to the complexity of the electronic systems involved, the commissioner retained an independent consultant to provide technical expertise. The commissioner’s conclusion was that while the public body is required to create the record under section 6, there was no reasonable way to sever the record pursuant to section 4 (2) of the Act. In that context the public body was ultimately not required to create the record since it would not be able to disclose any portion of the created record to the applicant.
• In Order F01-31, the OIPC considered a request seeking a list of ICBC suppliers whose status had been “revoked, reinstated, suspended or refused.” ICBC produced a record of suppliers whose status had been revoked or suspended but said there were no underlying records of suppliers whose status had been refused or reinstated. The adjudicator upheld ICBC’s position.
• In Order 73-1995, the OIPC considered whether subsection 6 (2) obligated public bodies to restore deleted emails that were contained in back-up tapes. The commissioner found that back-up tapes were machine-readable records under the control of the public body but that the amount of effort required to restore them would unreasonably interfere with the operations of the public body. [Note: The subsequent addition of subsection 3 (5) (d) to FOIPPA further clarified that records in electronic back-up systems are not subject to the Act.]

Sectional Index of Commissioner's Orders

The Office of the Information and Privacy Commissioner maintains a Sectional Index of Commissioner’s orders organized by the Act’s section numbers. 

The information in this manual is not intended to be and should not take the place of legal advice.  

Last updated: January, 2023