Section 9 - How access will be given

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Section 9 of the Freedom of Information and Protection of Privacy Act 

9 (1) If an applicant is told under section 8 (1) that access will be given, the head of the public body must comply with subsection (2), (2.1) or (3) of this section. 

(2) If the applicant has asked for a copy under section 5 (2) and the record can reasonably be reproduced, a copy of the record or part of the record must be provided with the response. 

(2.1) If the applicant has asked for a copy under section 5 (2) in electronic form and it is reasonable to provide the record in that form, a copy of the record or part of the record must be provided in that form with the response. 

(3) If the applicant has asked to examine the record under section 5 (2) or if the record cannot be provided in accordance with subsection (2) or (2.1) of this section, as applicable, the applicant must 

(a) be permitted to examine the record or part of the record if the record or part of the record can reasonably be examined, or 

(b) be given access in accordance with the regulations. 

Section 9 governs how access will be given to the applicant once the public body has determined that access is permitted. Section 5 (2) allows applicants to specify a preference for how they would like to receive access to the records. If an applicant does not specify a preferred method of access, it is reasonable for a public body to assume that applicants will agree to receive a copy of the records in electronic form. 

Under subsection 9 (3), if the applicant has requested to examine the record, or if the record cannot reasonably be reproduced, the head permits the applicant to view the record, subject to any regulations governing access. The applicant is entitled to examine only those parts of the record that would otherwise be released. If providing access to examine the original record may harm the record or interfere unreasonably with the operations of the public body, the public body may provide the applicant with an opportunity to examine a copy of the record. 

1. The public body determines whether the applicant has specified a preference for how to access the records. 

2. Where the applicant has requested a copy of the record and it can reasonably be reproduced, FOIPPA requires that a copy of the record be included in the response package. 

3. Where the applicant has requested to examine the record, FOIPPA requires the public body to arrange for that access if that request can reasonably be accommodated. 

Interpretation Note 1: Producing copies of records in various formats 

The definition of a “record” in FOIPPA is intended to be broad and includes far more than just paper-based records or electronic documents. 

Audio or Visual Records 

OIPC order 03-13 considered a case involving audio recordings. Rather than provide the applicant with copies of audio recordings that were responsive to the request, the public body created transcripts of the audio recordings and provided the applicant with severed versions of the transcripts. The public body suggested it was not required to produce copies of the audio tapes due to the time and effort required to produce the severed copies for disclosure. The OIPC found that section 9 (2) obligated the public body to provide the applicant with copies of the relevant audiotapes, severed as appropriate, in addition to the transcripts. A similar finding was reached in order 204-1997. 

Variety of Electronic Record Formats 

While section 9 (2.1) requires public bodies to provide a copy of the records in “electronic form“, FOIPPA does not distinguish between different types of electronic formats. Public bodies may need to convert electronic records between different formats to accomplish tasks such as consolidating records packages or applying severing.  

There are no OIPC orders that provide clear guidance on when converting records to other formats is appropriate or not, but public bodies should always operate in line with the Act’s purposes in Section 2 and the public body’s duty to assist under Section 6.  

Public bodies should not use document format conversion in a way that will frustrate the public’s right to access and should try to accommodate applicant requests for disclosure in specified electronic formats whenever those requests can reasonably be accommodated. 

Interpretation Note 2 (Section 9 (3)): 

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: October 2022