How to navigate the process once you’ve filed
If you’re reading this guide, you’ve already filed one (or several) freedom of information requests. (If not, first consult our guide on filing requests.)
While public bodies often advertise the FOI system as straightforward, it is anything but. Instead, you should treat it more as a conversation or negotiation for the records you truly want. This means you’ll need to balance being reasonable and accommodating, but also firm and direct. In some cases, this process may take months (or years!), so be prepared for that.
(Above all, please remember to be polite and respectful, especially when you’re frustrated. The FOI officer handling your file is another human being doing their job.)
Once you’ve filed, the FOI process plays out roughly like this:
The request is received by the FOI office.
An officer will send you an acknowledgment letter, usually by e-mail or, less frequently, in the mail.
The officer may follow up with you to ask for clarification. Once that’s received, the request is “tasked” (sent) to specific “program areas” – the offices that hold records “responsive” (related to) your request.
People working in those offices receive a tasking letter from the FOI office, which won’t identify you. To public servants outside of the FOI office, requests are supposed to be anonymous. (You can waive privilege and reveal your identity if it’s helpful, but in most cases it won’t be necessary.)
At this point, depending on the estimated workload to the FOI unit and offices in question, you may receive a time extension letter.
People working in program areas then send raw documents to the FOI unit. Depending on the complexity of the requested files or topics, they may also make redaction recommendations.
The FOI unit sifts through the documents, making redactions as they go. During this step, they may remove documents they don’t think are responsive to the request.
One or more managers approve the disclosure, as needed. For files that aren’t sensitive, an officer may just approve the disclosure themselves, depending on their internal policies.
The final package of records is sent to you, often by e-mail or in a mailed CD.
This guide will walk you through strategies for navigating all the challenges you might face while navigating the FOI process.
Table of contents
Things to keep in mind
It’s worth keeping a few things in mind:
Again, be polite. FOI officers are not the target of your request; they’re a go-between, a bridge between you and the public body office from which you’re interested in getting documents. These people are simply doing a job, often working in understaffed, under-resourced offices with high turnover rates.
Get in touch immediately. Once you receive an acknowledgment letter from the institution, you should e-mail or call the FOI officer (their contact information is often towards the end of the letter) and introduce yourself. This sets a positive tone, lets the officer know you will be staying on top of the request and gives them the chance to ask you any questions they may have. Some organizations, such as the Canadian Security Intelligence Service (a spy agency), don’t make names or contact information easily available for security reasons. In such cases, you may need to resort to sending an e-mail to a general inbox.
Document everything and stay organized. Document your interactions with the FOI office. Requests can often stretch on for months or years. After a month or two, you might not remember what you’d requested or discussed; future-you will appreciate the background. If you speak with the FOI officer on the phone, e-mail them once the call is over to recap what you just discussed. This also creates a paper trail you can refer to during an appeal, if necessary.
Check in as your request due date approaches. This reminds the FOI office that you are monitoring the request and are aware of the institution’s legislated deadline.
Officers have a duty to assist you. You are not expected to do everything on your own or know exactly how to navigate the arcana of government bureaucracy. Every FOI law has some sort of clause that says officers have a “duty to assist” you in filing and navigating your request. If you feel like an officer is being unhelpful or is leaving you to fend for yourself, kindly remind them of their legislated duty to assist. Appeals bodies do not look kindly on FOI units that failed to adequately help requesters.
Pick up the phone. Much of the FOI process is about good communication, but that goes both ways. You can’t expect to get exactly what you’re after if you’re being cagey with the officer handling your request. When in doubt, call them up; unsnarling a misunderstanding takes minutes on the phone, as opposed to hours or days of e-mail exchanges.
Clarifying and simplifying your request
FOI offices will often reach out once the request has been filed and ask you to be clearer about what it is you’re looking for. They may also propose language of their own.
Most of these clarification requests just re-word your original text to make it hew more closely to the language public servants use. For instance, take the following request:
“Company 123 Inc. provides various computer services to governments. I understand they have pitched the federal government many times in the past three years, and have even won some work. I would like to know about their proposals and work, along with copies of e-mails from managers discussing the company.”
An FOI officer may want to simplify this to:
“Copies of all contracts and request-for-proposal responses from Company 123 Inc., along with e-mails from people at EX-level or above regarding said company. From Jan. 1, 2020, to present.”
This kind of simplification is usually helpful, but in some cases the new language may not capture the substance of what you’re after. If that’s the case, discuss it with your FOI officer.
Unless you’re certain about what language you should be using, do not try and guess at what the “government-ese” version of your request will be. It’s far better to leave this kind of clarification to the FOI officer – again, they have a duty to assist you.
There are a few other reasons why an officer may want you to clarify your language:
Your request didn’t include a date range – a common expectation for FOIs.
They don’t understand what kinds of documents you’re looking for.
Your request will generate an enormous volume of records, and the FOI officer is trying to make the scope more reasonable.
It’s usually good practice to provide a range, unless you have a good reason not to have one. (This might be the case if, say, you only need a specific document, and you’re unsure of when it was put together, or if you want data going back to the inception of a certain database.)
Confusion about your request
While your request may seem straightforward to you, it could sound completely alien to an FOI officer. In cases like this, it’s best to speak with them on the phone and describe exactly what you’re after. If you can, tell them why you’re interested in the given topic, too.
These kinds of conversations can be illuminating, since they give you an opportunity to learn about the thing you’re requesting. For instance, requesters don’t usually know which offices should be asked to search for records. Take this opportunity to ask the FOI officer which program areas will be tasked. Particularly helpful FOI officers may suggest other types of records you might find interesting. The more open you are with the FOI officer, the better they can assist you.
In some cases, what you’re looking for will be so specific that you may be better off speaking directly with the program area. If this is the case, you can propose a conference call with them – but note that if you do this, you are effectively “waiving privilege” and revealing your identity.
Too many records
While it may be enticing to ask for all e-mails regarding the topic in which you’re interested, in practice this leads to very few useful records and will dramatically increase the processing time (and, in some cases, cost) of your request. Instead, limit your request to what you actually need. If you’re unsure whether your request is too broad, ask the FOI officer for an estimate on the number of pages to be processed.
Speeding up requests
There are some conditions that, when added to the text of an FOI request, will impact how quickly you get your files. Consider whether you’d be willing to:
Exclude “media monitoring.” These are files prepared by public servants summarizing news stories on a given topic. They are usually not very valuable and contain little to no interpretation or context from the public body.
Exclude cabinet confidences. These are documents that are covered under cabinet confidentiality provisions. They are usually withheld in full, but still trigger lengthy consultations with lawyers that can bog down a request.
Exclude all copies of documents except for final copies or latest drafts. Unless you must see the revision history for a given report, presentation or other document, excluding these files may drastically reduce the volume of records to be processed.
Exclude translations and specify a language of choice. In some jurisdictions, you may get documents in both French and English. Consider asking for translations to be excluded, unless the documents are available in only one language.
Exclude e-mails and other communications. Requests asking for e-mails are easily the most time-intensive to process. While e-mail chains can be valuable, they are often not information-dense. Consider excluding these entirely unless you need to see a full account of what public servants were discussing.
It may also make sense to split a request into several smaller ones, spreading the processing effort around to several officers.
In some cases, clarifications and excluding records won’t be enough to narrow down your request, and you may be looking at a significant time estimate as a result.
Say you’ve requested three briefing notes, along with all the internal e-mails and correspondence regarding the preparation of those briefing notes. In response, the FOI unit claims a 150-day extension. After speaking with them, you learn that while the briefing notes could be released almost immediately, the second half of the request requires officers to pore over more than a thousand pages of e-mails.
In this case, consider asking the office to split the request in two: One for the briefing notes, and another for the internal discussions (filing fees are usually waived in such cases). This may help get the easily-disclosed files out quickly.
Some offices will proactively split up requests. For example, a request for 10 briefing notes may be split into two batches of five notes each, with each file going to a different officer.
Be careful: Splitting can also slow down the request process. If you’re seeking 10 different documents from a police force, don’t file 10 separate requests. Instead, file a single request listing all 10 documents and ask the FOI officer if they would prefer the file be split.
Some jurisdictions allow the public body to charge additional fees for FOI requests. These fees are meant to account for time needed to search and redact records.
If you’ve filed in such a jurisdiction, you may receive a fee estimate. These estimates vary widely: You could get an estimate for $15, or one for tens of thousands of dollars. If the estimate is large enough, the public body will ask for a 50-per-cent deposit before processing the request, often payable by mailed personal cheque or money order.
If you think the fee estimate is unreasonable, your first step should be to negotiate with the FOI office. What is leading to the high fee? Can they suggest changes that would reduce it?
If the office won’t budge, you have two options: You can apply to that FOI office for a fee waiver, or you can appeal the estimate to that public body’s information commissioner.
Fee waivers are underused, both because requesters aren’t aware they are possible and because they further slow down the FOI process. If you’re able to demonstrate financial hardship or make a good case for why the requested records are in the public interest, you may qualify for one, but beware that a decision on a waiver application could itself take a month or longer. (For more general information on fee waivers, see the Ontario Information and Privacy Commissioner’s guide. Rules for waivers vary by jurisdiction, however.)
Your second choice is to appeal the fee estimate to the information commissioner. This process will, at a minimum, take several months, so bear that in mind.
Time extensions and interim releases
Since most FOI laws require a response within 30 days, every jurisdiction allows for time extensions.
Extension requests must be sent to you before that initial deadline, or the institution is in violation of the law. These extensions usually come as a formal letter, often sent by e-mail, noting the claimed extension (e.g. 90 days) and explaining why one is necessary. There are only a few grounds on which an extension can be taken: there are many documents to review, there is a need to consult with other ministries or departments, or there is a need to consult with a third party outside of government. Additionally, in Newfoundland and Labrador, extensions also require approval by the information commissioner.
If you disagree with an extension – say, because you suspect there shouldn’t be many responsive records, or because the extension is for a significant length of time (e.g. six months or longer) – you can attempt to negotiate with the FOI office, or file an appeal to the information commissioner. Bear in mind, however, that an appeal itself can take months to be heard.
If you’re negotiating, ask for a breakdown of how they arrived at the time estimate. Are certain types of documents or consultations mostly responsible for the long estimate? Could certain records be excluded to speed things up? What do they recommend? If you clarify your language after this step, be sure to ask for a new extension letter, or the office will still be legislatively bound by their initial estimate.
If a time extension is significant, you can also ask for one or more “interim releases,” in which documents are sent to you in batches as they are processed. Not all offices are willing to do this, however.
When handling multiple requests, it’s easy to lose track of the deadlines for your request. In those cases, we suggest using a tracking spreadsheet like this one.
Some jurisdictions also have “clock-stopping” mechanisms that effectively pause the public body’s countdown toward its statutory deadline. This usually happens if the institution needs more information from you (such as a clarification or fee payment) before the request can continue. Keep this in mind when calculating an institution’s deadline.
Institutions frequently blow right past their legislated due date, whether or not they have claimed a time extension.
You have two options in such situations: You can reach out to the FOI office and ask for an explanation – in the process, reminding them that you’re aware they’ve missed their deadline – or file an appeal.
There are a few good reasons to appeal. For one, some FOI offices de-prioritize files that are overdue; appealing may move your file closer to the top of the pile. It is also a good practice that keeps the institution accountable, since appeals are recorded on their official performance statistics.
Delay appeals are usually much simpler than appeals over time extensions, fees or redactions, since the only issue is whether or not the institution’s deadline has elapsed.
Ontario’s Information and Privacy Commissioner charges up to $25 for an appeal. If you’re dealing with many overdue Ontario files, we don’t recommend appealing them all; instead, only appeal the ones that are important.
If the appeals body does not charge a fee, we recommend appealing every single overdue file within a few weeks of a missed deadline.
Sometimes, you’ll receive records in a format other than the one you asked for. This comes up most often with FOI requests for spreadsheet data: Many institutions will insist on converting a machine-readable spreadsheet (such as an Excel or comma-separated values file) into a PDF, effectively locking away the underlying data and requiring tedious, error-prone manual entry into a spreadsheet to recreate the underlying information. This is particularly frustrating for large datasets with thousands of rows, where hand-entering the data would be exhausting and inefficient. Record disputes could also arise if you asked for videos, audio or other types of records that the office is not accustomed to releasing.
Although you could immediately appeal, we recommend first consulting that jurisdiction’s legislation. Many FOI laws specify that releases must be provided in the format requested (within reason). For instance, subsection 4(2.1) of the federal Access to Information Act states that “a government institution shall … provide timely access to the record in the format requested.” Gently reminding the FOI officer of the law will often be enough to get a new release package sent to you in the format you requested.
Barring that, your only alternative is to appeal.
I think my FOI is missing something
Once you receive your records, you may discover that they are missing something important – perhaps a report you expected to see is absent, or text in a spreadsheet or PowerPoint presentation is cut off at the margins.
If this happens, immediately reach out to the FOI office (over e-mail, if possible, so that your concerns are documented) and explain the situation. Officers are usually happy to correct the issue and re-send you documents without a new request if your concerns are reasonable. If they won’t help you, you’ll need to file an appeal.
I think I was sent files in error
In rare cases, an FOI office may send you someone else’s FOI package or include documents of information they weren’t supposed to, such as another person’s protected personal information. In such cases, inform your FOI officer.
Most FOI releases contain redactions. While these can be frustrating, there is not often much room for negotiation – the public body can and will apply redactions as it sees fit.
You may be able to pre-empt redactions in some cases by speaking with the FOI officer while the request is being processed and making a case for why certain redactions shouldn’t apply. For instance, if you were requesting data on doctors’ billings in Ontario, you could point the officer to the landmark Ontario Medical Association v. Ontario (Information and Privacy Commissioner), 2018 ONCA 673 court case, which established that doctors’ names are not personal information in the context of billing data. In our experience, these kinds of pre-emptive arguments are rarely successful, however.
Ultimately, your only recourse is to file an appeal. For more on the appeals process, see the next guide in our series.
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