THE PROCESS

If you have the slightest distrust, or a burning question, with any authoritative entity, even if not COVID related, I encourage you to initiate a FOI request. Get answers. We need to show those in leadership we do not believe their contrived narrative. Challenge them. Let them know we are watching.

The FOIP process can be a bit daunting at first. One of the things we teach karate students—the hardest part of learning karate is entering the dojo door before class. The same goes with the FOI process. That hardest part is filling out the form and dropping it into a mailbox. Second thing you need to understand—you need to be patient and persistent.

Before administering a FOIP, make sure you have a general understanding of the acts and regulations. Now a caveat, I am from Saskatchewan, so I can only speak on Saskatchewan legislation.

Understand where you are sending your request. Are they government or are they local authority?

Within the appendix of the FOIP and LAFOIP regulations, each lists applicable definitions/entities. It also contains the forms to initiate the request.

The legislation, acts and forms are a bit of an effort to find. Go to the former Queen’s printer site, which is now renamed Publications Center.

 https://publications.saskatchewan.ca/#/home

NOTE: This revised website is a real mess, just like the SHA website. Even if you use the precise document name, the search engine brings up obscure documents bearing no relationships. Truly meant to frustrate and cause someone to relinquish their search.

Be specific and concise in your FOI wording for the records you seek. Narrow down your time frame. In most of my FOIPs, my request dates covered periods from January 2020 and ended with current dates. I wanted assurance that if COVID was discussed long before flattening the curve; I was getting those records.

After submitting your FOIP request, be prepared for some push back. Your target will contact you, asking you to rephrase for clarity’s sake; or ask for a more precise date; or warn you of the high costs. This is done by design. It stops the processing clock and forces you to respond. This tactic failed to dissuade me. I always responded within the day.

Part of that pushback, be prepared for an inept bureaucracy, obfuscation and lies.

A GOVERNMENT FLOW CHART DETAILS THE PROCESS; 1. FURTHER INFORMATION

https://www.saskatchewan.ca/residents/justice-crime-and-the-law/your-rights-and-the-law/make-a-freedom-of-information-request#making-an-access-to-information-request

The agency that you directed your request, by law, must respond with an answer, or provide you with an estimate within 30 days. This estimate will provide you an approximation of how many pages exist, along with the processing fee to supply you those records.

You will be required to submit a deposit for half the estimate before they compile the records. Once the records have been gathered and vetted, you will be notified of the balance of payment before receiving your records.

One must understand that institutions continuously breach the 30-day process as legislated within the act and regulations. This can be used to your advantage. Fees can be waived. Sometimes, you will need to argue for that waiver.

When your target breaches legislation, these entities suffer no repercussions, only a written slap on the wrist. The FOIP process is constituted to protect the government and institutions like the Holy Family School Board and especially the government.

These breaches are a slap in the face. These institutions to which you pay taxes to, use your tax dollars to delay. Meanwhile, you must bear the time and costs yourself.

I’ve noticed a pattern in their responses. If you have more than one FOIP in the government system, it seems these entities coordinate their replies. For example, if you had three active requests. All three entities will contact you (THAT SAME DAY) with questions or with a notice of delay after 5 pm. They maximize stopping the clock and force you to prioritize an answer. Once you answer, the clock restarts.

Some individuals have reached out to me to help draft their FOIPS, but once I inform them of the time, the delays, the costs, they develop cold feet. This is unfortunate. We must keep the pressure on; they must know we have eyes on them. The more eyes, the better. I ASSURE YOU IT IS WORTH THE PROCESS.

Fees, what to expect: Your estimate will include time to process and the number of pages. Legislation limits what they can charge for each of these items.

The Freedom of Information and Protection of Privacy Act

Fee

9(1) An applicant who is given notice pursuant to clause 7(2)(a) is entitled to obtain

access to the record on payment of the prescribed fee.

(2) Where the amount of fees to be paid by an applicant for access to records is

greater than a prescribed amount, the head shall give the applicant a reasonable

estimate of the amount, and the applicant shall not be required to pay an amount

greater than the estimated amount.

(3) Where an estimate is provided pursuant to subsection (2), the time within which

the head is required to give written notice to the applicant pursuant to subsection 7(2)

is suspended until the applicant notifies the head that the applicant wishes to

proceed with the application.

(4) Where an estimate is provided pursuant to subsection (2), the head may require

the applicant to pay a deposit of an amount that does not exceed one-half of the

estimated amount before a search is commenced for the records for which access

is sought.

(5) Where a prescribed circumstance exists, the head may waive payment of all

or any part of the prescribed fee.

There is also a processing fee of $20.00 for LAFOIPs. My interpretation, this fee is repaid if no records or a refusal are given.

                The Local Authority Freedom of Information and Protection of Privacy Regulations

Fees

5(1) An application fee of $20 is payable at the time an application for access to

a record is made.

(2) Where access to a record or part of a record is given by providing the applicant

with a copy of the record, the following fees are payable at the time when access

is given:

(a) for a photocopy, $0.25 per page;

(b) for a computer printout, $0.25 per page;

Even though there is a section in the act that discusses financial hardship, there is no set definition. Each entity defines and applies financial hardship differently. And always to their advantage. This is an exaggeration, but even a homeless person would have a hard time proving financial hardship.

Regarding the 30 days, they must provide information. You are more likely to receive a 30-day extension rather than an estimate. Each will arrive between day 25 to 30.

If you get an estimate, the clock stops until you provide a down payment (you have 30 days to respond). I’ve always provided the down payment fee within 5 days. There were instances where I provided the down payment and the entity asked for a 30-day extension.

THINGS YOU SHOULD KNOW

Right of access, section 5 states: Subject to this Act and the regulations, every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a government institution.

LAFOIP (local authority) has a similar legislation.

In Section 8 of the act: Severability; Where a record contains information to which an applicant is refused access, the head shall give access to as much of the record as can reasonably be severed without disclosing the information to which the applicant is refused access.

Section 7 of FOIP requires that, when denying an applicant’s access application, whether in full or in part, the written notice must meet three requirements:

1. It must state that access is refused to all or part of the record;

2. It must set out the reason for refusal; and

3. It must identify the specific provision of the Act on which the refusal is based.

Section 61 of FOIP requires the institution to demonstrate that the exemptions apply. This includes explaining how each part of the section applies. An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground…

With respect to redacting or withholding information Section 61, Burden of proof, reads: the burden of establishing that access to the record applied for may or must be refused or granted is on the head concerned. This requires the institution you are seeking information from, must demonstrate that the exemptions apply. This includes explaining how each part of the section applies. An institution must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground.

When considering what exemptions to apply, government institutions must balance the right of access against denying it in order to protect other interests. Canadian courts agree exemptions are the exception and disclosure are the general rule, with any doubt being resolved in favour of disclosure. [i] The basic policy of the Act is that “disclosure, not secrecy is the dominant objective of the Act”. [ii] The Government of Saskatchewan must ensure accountability to persons affected by the information.

Concerning exclusions; An Institution cannot rely on secondary subsections without first applying the primary exclusion. For example, a government institution cannot rely on subsection 17(1)(g) for a record that fits within the enumerated exclusions listed at subsection 17(2). Before applying subsection 17(1) of FOIP, government institutions should ensure that subsection 17(2) of FOIP does not apply to any of the records.

When requesting a review from the privacy commissioner, you can also use a form provided by their office. I’ve never used one. I’ve submitted an email with my detailed arguments and attached files.

I’ve found that the current privacy commissioner to be fair toward my rulings, and other rulings that I’ve researched.

All decisions by the Saskatchewan Information and privacy commissioner can be found at.

https://oipc.sk.ca/reports/

Decisions regarding my reviews:

https://oipc.sk.ca/assets/foip-review_274-2021.pdf

https://oipc.sk.ca/assets/la-foip-disregard_040-2022.pdf

There is so much added information I could have detailed. I’ve only scratched the surface. Feel free to reach out to me if you have questions.