Section 5 - How to make a request
Last updated on October 19, 2022Overview
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
(a) provides enough detail to enable an experienced employee of the public body, with a reasonable effort, to identify the record 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.
Summary
Section 5 sets out the requirements for a formal access request under FOIPPA. At minimum, requests must be submitted in writing (with certain exceptions – see Interpretation Note 1), include a coherent description of the record being sought, and be submitted to the public body the applicant believes holds the requested record. Requests must be submitted in a manner that does not create a potential harm to employees or electronic systems. (See Interpretation Note 2)
The Act permits an applicant to request access to a record. It does not permit an applicant to seek information or an answer to a question. However, public bodies should always act in accordance with the “duty to assist” outlined in section 6 and should help applicants to re-structure or clarify requests as appropriate. If a request for information can be satisfied by locating or creating a record which contains the requested information the public body should consider doing so. (See Interpretation Note 3)
Similarly, public bodies should not introduce any requirements for applicants that are not found in the Act. For example, section 5 does not contain any requirements for applicants to identify themselves, reference FOIPPA by name, submit the request using any particular form, or submit the request to any particular office or department of the public body.
While section 5 sets out the minimum requirements for a request, applicants are advised that requests with a clear and reasonable scope, seeking specific records or records on a specific topic, will lead to a more efficient administration of the Act. Focused requests lessen the chance of processing fees being levied and may lead to faster response times. Requests that are vague or overly broad are less efficient for public bodies to process and may end up generating fees or result in a large volume of superfluous records.
The right of access may be exercised on behalf of another person in accordance with section 5 (1) (b) of the Act and sections 3-5 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. (See Interpretation Note 4)
Under section 5 (2), 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 an electronic copy of the record. How a public body provides access to a record is dealt with by section 9 of the Act.
Policy
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Public bodies must provide an applicant with a written acknowledgement of each request. The acknowledgement must include, at minimum:
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A description of the request;
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File or Request number;
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Legislated due date of the request;
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Contact information the applicant can use to inquire about the request
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Public bodies must not require an applicant to identify themselves. (See Interpretation Note 4, Interpretation Note 5 & Interpretation Note 7.)
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Public bodies must not require applicants to submit a request using any particular template or form.
Procedure
- The public body receives a request and determines whether it meets the requirements of section 5.
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If there is any uncertainty about the request, public bodies are encouraged to discuss the request with the applicant to clarify or re-direct 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.
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If the requested records are routinely available, the public body may provide the applicant with the records or state 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.
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A public body may combine several requests from one applicant into a single request or split a single request into several requests, if appropriate. (See Interpretation Note 6)
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When an applicant is seeking access to personal information, a public body should take appropriate steps to verify the identity of the applicant. (See Interpretation Note 7)
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When an applicant is making a request on behalf of another person, a public body should take appropriate steps to verify that the applicant is authorized to make a request on behalf of the other person. (See Interpretation Note 4)
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The public body determines whether an application fee is required and informs the applicant if payment is required.
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Once the public body has completed its due diligence, the applicant is informed, in writing, of the receipt of the request.
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Sample letter template:
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Letter 5-1: Acknowledgement of Receipt of Access Request
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Interpretation
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.
Examples:
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An applicant with certain muscular disabilities cannot type or hold a pen.
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An applicant has a limited ability to read and write in English.
If there is evidence that opening correspondence to determine the wording of a request could harm a public body employee or could harm the security of any property or system, the requirement in section 5 (1) (a) would not be met; unreasonable effort would be required to identify the records being sought. Individuals who send correspondence of this nature can be notified that their correspondence will not be opened or addressed as per section 5 (1).
The Act provides access to records only. Some requests may contain a combination of questions, requests for information, and requests for records. Questions or requests for information from applicants which cannot reasonably be addressed through the FOI process may need to be referred to the relevant department for further response.
Sections 3-5 of the Freedom of Information and Protection of Privacy Regulation outline the circumstances where someone may exercise the right of access to a record on behalf of another person. Past OIPC decisions (F17-04 and F18-44, as examples) 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.
FOIPPA allows FOI applicants to remain anonymous. Although this topic is not explicitly addressed in the Act, Section 5 does not require applicants to provide a telephone number, address, affiliation, or even their name when making a request. Public bodies therefore cannot require applicants to provide that type of personal information for the request to be considered valid.
Applicant anonymity generally should not affect the processing of non-personal FOI requests. However, it would be a significant consideration for requests seeking personal information. Disclosure of personal information through FOI will likely not be possible if the public body cannot reasonably verify the identity of the applicant.
FOIPPA is silent on whether public bodies are authorized to combine or split requests, but the OIPC has previously considered the issue and found that combining requests may be appropriate in some circumstances.
OIPC orders 00-19 and 00-20 considered a situation where an applicant submitted four contemporaneous requests to the same public body on the same topic. The OIPC adjudicator found that the public body was justified in treating the matter as a single request in order to conduct an efficient search for records. A fee estimate issued in relation to the combined request was also found to be appropriate. Meanwhile, OIPC order 04-29 found that an applicant’s requests were sufficiently different that each should be treated as its own request for the purpose of calculating fees.
There is no clear guidance available for when combining or splitting requests is authorized but it is sometimes permissible, particularly in circumstances where it leads to a more efficient administration of the Act.
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 should 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 birth date or 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 additional steps to verify identity. Some public bodies may offer the option for the applicant to verify their identity online using the BC Services Card app. Some public bodies 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
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