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November 12, 2015

Tailor your freedom of information request, and other helpful advice

McCannMarcus McCann has ten years of experience with freedom of information requests as a lawyer and journalist. Here is a brief conversation with Marcus about the process.

How difficult is it to file a freedom of information request?

On its face, it’s not difficult at all. Anyone can do it. The first thing to do is figure out which government ministry or department has the information you want. Each one has a freedom of information office. Cities and municipalities do too, as do some large institutions like universities and colleges. You can write them a letter or use their form. There is a nominal fee, usually $5, and that’s it. You’re off to the races.

You said, “on its face.” Is it more complicated than that?

Sure. It really is that simple to get started, and there’s no downside, so I encourage people to try it. But how you frame your request will have a big effect on the information you get. Generally speaking, if there is a document that you know exists, ask for that document. The more narrowly you tailor your search, the better it’s going to be: the results will come more quickly, and be more on point. Fishing expeditions are generally not advisable.

Why is that? Does the law forbid fishing expeditions?

No, no. There is no law forbidding broad requests. But the folks who handle your requests are real people, and they’re just going to work harder for you if they get the sense you know what you’re looking for. There’s also the cost, which can be significant.

The cost? Isn’t it usually $5?

Yes, but the next step is that the government will estimate how much time it will take to locate the documents, and how much photocopying is required. There is a formula, and broad requests can get expensive. The most expensive one I did was about $3000, but I’ve heard of requests which cost as much as $100,000. The cost estimates can be appealed, and if you’re not in a hurry, it’s usually worth doing.

If you’re not in a hurry? How long do requests take?

Well, one important thing to know is that these requests take a long time. I would budget at least a year. It usually takes 30 days to hear back, but a ministry can unilaterally extend their deadlines, and they often do. Appealing the cost estimate can result in an additional delay of three or four months on average, so it’s something to consider. My longest request, well, it’s ongoing actually. I filed it in September of 2012, so it’s already been more than three years.

That’s a long time. Why the delay?

The ministry in that case significantly redacted the documents which were provided to me, and I appealed that to the Information and Privacy Commissioner. There was mediation, and then a paper hearing. I won, but the ministry appealed. So now I’m headed to divisional court, probably in the winter or spring of 2016.

What’s the issue?

It’s about solicitor-client privilege, which is one of the exceptions to the rule that ordinarily citizens ought to have access to documents created by their own government. In my case, the document I want was created by a lawyer, but she waived solicitor-client privilege by sharing it with a third party. At least, that was the conclusion reached by the IPC. There are other exceptions too, for ministerial advice, for example. When these types of cases come up for judicial review, it’s usually about one of the exceptions, and those can be kind of technical.

Anything else you want to add?

The process sounds like a slog, but it’s really not that intensive. It’s just a lot of waiting. And not all requests take quite so long. I had a great experience with the Canada Border Services Agency’s access to information staff — fast, efficient, helpful — so it’s not always a big fight. You know, in a world where there are fewer and fewer investigative journalists out there, other players like NGOs, unions, businesses, and individuals are picking up the slack. That’s useful. Or, at least, it can be.

Millard & Company specializes in administrative law and has represented both applicants and respondents in many cases before boards and tribunals. The firm has represented requestors in FOI cases and appeals.

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