What to do if a public body won’t provide a document required by law

If a municipality, local board (eg. police service) or other public body does not have, or refuses to provide, a policy, bylaw, plan or other document that they are required by law to have or make available to the public, you can submit a Freedom of Information (FOI) request (and later a FOI request appeal, if necessary) to make them produce it.

This approach was successful in 2022 when a resident of the Township of South Glengarry submitted a Freedom of Information Act request MO-4159 asking for access to their “personal information records” as follows:

1. Please identify and provide access to inspect and correct all of my personal information records which I have not previously requested.
2. Please identify and provide all S34 [section 34 of the Act] Personal Information Bank index or records relating to my personal information records which I have not previously requested.

After the request was received, the township initially told the appellant that it did not maintain any personal information banks or the corresponding index.

After discussing the matter, the township reformulated the request and issued a decision, in which it disclosed some records.

The resident appealed to the Information and Privacy Commissioner of Ontario (IPC), pointing to the township’s failure to maintain a personal information bank index and its corresponding failure to search for records within its personal information banks.

During the adjudication stage, the township published, on its website, a personal information bank index.

The adjudicator found that because the township had now published its personal information bank index, it was now in compliance with section 34 of the Act and therefore concerns about whether the township is in breach were moot.

Examples of required documents

• Pecuniary Interest Registry
• Personal Information Bank index
• Accountability and transparency policy
• Municipal Community Safety and Well-Being plans
• Police service policies
• Police service Diversity Plan
• Police service Strategic Plan

Example: Belleville did not have a Personal Information Bank Index

I first tried inquiring about the status of the registry with the Deputy Clerk, who is responsible for handling FOI requests.

1. June 28, 2022 – Emailed the Deputy Clerk Christine Stewart, no response
2. July 11, 2022 – Emailed the Director of Corporate Services/Clerk Matt MacDonald, no response
3. April 11, 2023 – Emailed the Administrative Assistant – Corporate Services Department who response to FOI requests, no response

April 2023 – FOI Request template for Personal Information Bank

After receiving no response from any of my inquiries, I found and followed the approach used by the resident of the Township of South Glengarry, filing the following Freedom of Information request with the City. My cheque was cashed April 21, 2023. Here is request I sent:

Freedom of Information request template

Please identify and provide access to inspect Belleville’s Personal information bank index as described in Section 34 of the Municipal Conflict of Interest Act, which states:

Personal information bank index
34 (1) A head shall make available for inspection by the public an index of all personal information banks in the custody or under the control of the institution setting forth, in respect of each personal information bank,

(a) its name and location;

(b) the legal authority for its establishment;

(c) the types of personal information maintained in it;

(d) how the personal information is used on a regular basis;

(e) to whom the personal information is disclosed on a regular basis;

(f) the categories of individuals about whom personal information is maintained; and

(g) the policies and practices applicable to the retention and disposal of the personal information.

Ensure accuracy

(2) The head shall ensure that the index is amended as required to ensure its accuracy.  R.S.O. 1990, c. M.56, s. 34.

https://www.ontario.ca/laws/statute/90m56#BK47

It would look something like these:

• https://www.brampton.ca/en/city-hall/access-privacy/documents/personal%20information%20bank%20register.pdf
• https://www.burlington.ca/en/council-and-city-administration/resources/Accountability-and-Transparency/Freedom-of-Information/City-of-Burlington-Personal-Information-Bank.pdf

In addition,

1. Please identify and provide access to inspect and correct all of my personal information records which I have not previously requested.
2. Please identify and provide all S34 [section 34 of the Act] Personal Information Bank index or records relating to my personal information records which I have not previously requested.

May 2023 – Belleville’s response to the FOI request

May 19, 2023 – Almost 1 year since I first emailed the City about the missing Index, I received the response to the FOI request from the Director of Corporate Services/Clerk, stating that they do not have a Personal Information Bank Index and that they are working on one to have “near future”.

June 2023 – FOI request appeal

Following the lead of the resident of the Township of South Glengarry, I filled out the IPC Appeal Form and included with it the following appeal:

My request to the City of Belleville to “identify and provide access to inspect and correct all of my personal information records which I have not previously requested” was denied as they were “unable to grant my request as no records are available”.

The City has failed to maintain a personal information bank index and failed to search for records within its personal information banks, in violation of Section 34 of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) –  a serious and significant omission on the part of the City.

I have the right to access any personal information about the individual contained in a personal information bank in the custody or under the control of an institution; and any other personal information about the individual in the custody or under the control of an institution with respect to which the individual is able to provide sufficiently specific information to render it reasonably retrievable by the institution.

I first emailed the City’s Clerk and Deputy Clerk about this on June 28, 2022 and have not received a response. It has been almost a year since then and the response from the City that “we are working on one to have in the near future” is unacceptable.

February 2023 – Personal Information Bank created and records provided

Belleville now has a Personal Information Bank:

The retention by-law will be updated, and the index – a living document – will be updated when processes change or updates to by-laws are approved.

A search of the records they had on me personally contained:

• Parking ticket
• Garbage bag tag purchases
• Bulky goods pickup order
• Property taxes
• Emails to a department regarding a specific project

FOI request must be strictly for records themselves to avoid being deemed as “frivolous or vexatious”

To ensure your request is processed successfully and not dismissed as being “frivolous or vexatious” (one of the exceptions) it must be framed strictly as a request for specific records. Under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), the goal is to provide access to information, not to facilitate an audit of a municipality’s internal administrative processes.

• Request records, not answers: Do not ask questions about how records are structured or what types of records exist. Instead, clearly describe the specific documents you wish to receive.
• Avoid “sample” requests: Do not ask for samples to see how the municipality maintains its files. This is often interpreted as a request for a “purpose other than to obtain access,” which can lead to a denial.
• Focus on access: While you may have a valid interest in how a township manages its data, the FOI process is not the appropriate venue for scrutinizing record-keeping practices. Keep your personal intentions and your desire to “check their work” out of the formal request.

Information and Privacy Commissioner’s denies FOI appeal because request was for a “purpose other than to obtain access”

However, I find that the frivolous or vexatious determination was not made because of a conflict of interest or another improper purpose, but because the appellant was making the requests for a purpose other than to obtain access.

A request is made for a “purpose other than to obtain access” if the requester is motivated not by a desire to obtain access, but by some other objective.

In order to qualify as a “purpose other than to obtain access,” the requester would need to have an improper objective above and beyond an intention to use the information in some legitimate manner.

While there may be valid reasons for assessing the township’s record retention practices generally, it is not the purpose of the freedom-of-information process under the Act. As described above, accessing records to scrutinize an institution is a valid reason to seek access to records. However, regardless of the reason, a request must still be for records themselves, rather than to provide an overview of an institution’s record keeping practices. Here, I find that the appellant is seeking the latter, and as such, the request was made for a purpose other than seeking access.

Appeals MA22-00160 and MA22-00587