Section 6 - Duty to assist applicants

Summary

Subsection 6(1) requires the head of the public body to make every reasonable effort to assist applicants and to respond openly, accurately, completely and without delay.

A public body is not required to create a record to satisfy a request except as outlined under subsection 6(2).

Section Reference

Section 6 of the Freedom of Information and Protection of Privacy Act

(1) The head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately and completely.

(2) Moreover, the head of a public body must create a record for an applicant if

(a) the record can be created from a machine readable record in the custody or under the control of a public body using its normal computer hardware and software and technical expertise, and

(b) creating the record would not unreasonably interfere with the operations of the public body.

Policy

  1. Upon receiving a request under the Act, the public body shall cease all final disposition actions pertaining to the records requested, including destruction or transfer activities.
  2. Public bodies are not required to create a new record in response to a request, except in accordance with subsection 6(2).  Public bodies are not required to create a new record in cases where new computer software or hardware would be needed to create the record, where staff do not have the technical expertise required, or where the task would unreasonably interfere with operations. 
  3. Public bodies are not required to translate a record from one language to another or to another medium such as Braille.
  4. Public bodies are not required to prepare a transcript of an audio or video tape if one does not already exist.
  5. The public body’s obligation to create a record from machine readable records does not extend to electronic mail that has been deleted and exists only on back-up tape. (OIPC Order 73-1995).

Procedure

  1. The head of the public body responds to the applicant in accordance with section 7 (Time limit for responding), section 8 (Contents of response) and section 9 (How access will be given).
  2. If the public body and the applicant agree to change the original scope of a request, the public body documents the change.

Interpretation

Interpretation Note 1 (Subsection 6(1)):

The duty to assist obliges public bodies to meet a threshold of reasonableness in conducting adequate searches for records.  The burden of proof is on the public body to show that it has conducted an adequate search.  Public bodies should record the efforts made to respond to a request.

"Every reasonable effort" is an effort which a fair and rational person would expect to be done or would find acceptable.  The use of "every" indicates that a public body’s efforts are to be thorough and comprehensive and that it should explore all avenues in verifying the completeness of the response.  Public bodies should record the efforts made to respond to a request.

A public body’s initial contacts with an applicant are critical to satisfying the applicant’s information needs.  It is also a time when the public body acquaints the applicant with the steps involved in processing a request.  The access "partnership" between public bodies and applicants covers both the formal rights and duties under the Act and the informal contacts during the request process.

Employees, members and officials of public bodies must work with applicants in a partnership to process every request:  both parties have an interest in the efficient, timely processing of requests.  Informal contacts between both parties should extend well beyond the formal duties imposed by the Act and regulations.

In some cases, the public body and the applicant may jointly decide that some or all of the applicant's information needs can be satisfied by releasing routinely available records.

Public bodies assist applicants in defining their requests and in making them as specific as possible.  Vague and overly general requests unnecessarily increase workloads for information and privacy staff and may result in the release of information that is of no interest to the applicant.  For non-personal information, narrowing the request reduces the fee for the applicant.

Where requests are vaguely worded, public bodies attempt to contact applicants by telephone, when possible, to clarify their requests.  An applicant’s request may be overly broad, for instance, because of a lack of knowledge of the public body’s mandate.  Without assistance from the public body, applicants may not be able to specify what information satisfies their information needs.

In responding to an applicant’s request for information, the duty to assist obliges the head of the public body to defer to the applicant’s wishes, if practicable, but does not require the public body to make unreasonable efforts to satisfy an applicant’s request for information. 

Examples:

  • the public body may provide contextual information to assist the applicant to understand the record, if the record itself provides incomplete or misleading information;

  • information that cannot be understood on the face of the records is explained.  For example, if information in a record is encoded, the public body provides the applicant with an explanation of the codes;

  • the public body is not required to provide a technical explanation, e.g., the principles of civil engineering, to assist the applicant to understand a technical report on the structural design of bridges;

  • a public body is not required to provide an interpretation of medical or psychological personal information where it does not have professional staff competent to do so.  Public bodies providing medical or counseling services to clients should, however, incorporate into the duties of professional staff a responsibility for assisting clients who wish access to their own personal information; and,

  • if a record contains illegible handwriting, the public body normally assists the applicant by transcribing this portion of the record.

Interpretation Note 2 (Section 6(2)):

Subsection 6(2) establishes that a public body has a duty to create a record from existing machine readable records if it can do so using normal computer hardware, software and technical expertise, and, the creation of the record would not unreasonably interfere with the operations of the public body.

The public body is not required to create a new record in cases where new computer software or hardware would be needed to create the record, where staff do not have the technical expertise required or where the task would unreasonably interfere with its operations.  In deciding whether creating the record would unreasonably interfere with its operations, the public body assesses the time and resources which would be required to create the record and the impact which this use of resources would have on its day-to-day activities.

Examples:

  • A public body’s purchasing department maintains a database of vendor information.  The name of the city in the vendor’s address is recorded in a separate field. An applicant requests a list of vendors located in a particular city. The public body does not produce such a report for its own use, but the database has ad hoc reporting capabilities which could be used to run such a report. Little or no special programming is needed and little staff time would be required. In this case, the public body has a duty to create the record.

  • An applicant requests information on the relationship between snow pack and annual growth rates of certain varieties of trees in a number of forest districts. The public body has two separate databases, one containing data on growth rate of trees and the other containing data on annual snow pack.  The public body does not link the data in the way the applicant has requested. The two systems are technically incompatible. In order to produce the requested report, a programmer would have to be hired for several weeks.   In this case, the public body is not required to create the record. 

"machine readable record" means anything upon which information is stored or recorded such that a computer or other mechanical device can render the information intelligible.

Examples:

  • A word processing electronic document stored on a hard or floppy computer disk.
  • An electronic data base containing personal or general information that is stored on magnetic tape.
  • A video cassette containing recorded sound and images.
  • An offset plate used in the printing industry for printing paper copies.

"normal computer hardware and software and technical expertise" means the computerized data processing equipment, accompanying software programs and in-house technical staff employed by the public body on a daily basis. A public body is not required to acquire equipment or software, or seek the expertise of an outside body or person to create a record from a machine readable record in its custody or under its control.

"Unreasonably interfere"

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Last updated: August 18, 2008

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