Section 23 - Notifying the third party

Overview

Section 23 applies when a request has been received for access to a record believed to contain information that might be withheld under section 21 (Disclosure harmful to the business interests of a third party) or section 22 (Disclosure harmful to personal privacy).

Section Reference

Section 23 of the Freedom of Information and Protection of Privacy Act

23 (1) If the head of a public body intends to give access to a record that the head has reason to believe contains information that might be excepted from disclosure under Section 21 or 22, the head must give the third party a written notice under subsection (3).

(2) If the head of a public body does not intend to give access to a record that contains information excepted from disclosure under Section 21 or 22, the head may give the third party a written notice under subsection (3).

(3) The notice must

(a) state that a request has been made by an applicant for access to a record containing information the disclosure of which may affect the interests or invade the personal privacy of the third party,

(b) describe the contents of the record, and

(c) state that, within 20 days after the notice is given, the third party may, in writing, consent to the disclosure or may make written representations to the public body explaining why the information should not be disclosed.

(4) When notice is given under subsection (1), the head of the public body must also give the applicant a notice stating that

(a) the record requested by the applicant contains information the disclosure of which may affect the interests or invade the personal privacy of a third party,

(b) the third party is being given an opportunity to make representations concerning disclosure, and

(c) a decision will be made within 30 days about whether or not to give the applicant access to the record.

Summary

Public bodies hold large quantities of information about individuals, companies, non-profit groups or other third parties, the disclosure of which might result in harm to these third parties.

The third party notice provisions of section 23 apply only in those cases where a request has been received for access to a record that contains information to which section 21 (Disclosure harmful to business interests of a third party) or section 22 (Disclosure harmful to personal privacy) might apply.  Third party notice is mandatory if the head of the public body intends to give access to the record.  Third party notice is optional if the head intends to deny access to the record.  If third party notice is given, notice is also given to inform the applicant that the public body has asked the third party to submit representations and that the response to the request will be delayed to allow time for consideration of these representations. 

Policy

  1. The third party notice provisions of section 23 apply only in those cases where the public body has received a request for access to records that might contain information excepted from disclosure under section 21 (Disclosure harmful to business interests of a third party) or section 22 (Disclosure harmful to personal privacy).  These notice provisions do not apply to other categories of consultations (e.g., with other public bodies or the federal government).  See Third Party Consultations in the Interpretation section below.

  2. The head of the public body must give third party notice if he or she intends to give access to a record that contains information that might be excepted under section 21 or section 22.  The head of the public body may give third party notice if he or she does not intend to give access to a record containing such information.  Third party notice should be given any time that there is a reasonable basis for the belief that the record contains information that may be excepted from disclosure under section 21 and/or section 22.

  3. The public body must give all notices required under section 23 in writing.

  4. Notice shall be given to the applicant in accordance with subsection 23(4) if the head of the public body exercises the option to give written notice to the third party under subsection 23(2).

  5. At each stage of the process, the public body gives notices to the applicant and the third party on the same day.  The public body normally sends the notices to the third party and to the applicant by mail (regular mail or priority post).

  6. Third party notice dates from the day the public body gives the notice, not the date the third party receives it.

  7. If more than one third party may be affected by the disclosure of information in the record, the public body gives notice to each affected third party.

    The notice sent to the third party must not disclose the identity of the applicant; the notice sent to the applicant must not disclose the identity of the third party.

Procedure

  1. Notice to Third Party

Use the appropriate sample letter or a similar letter:

  • Letter 23-1 (with attachment):  When information may be withheld under section 21 (Disclosure harmful to business interests of a third party);

  • Letter 23-2 (with attachment):  When information may be withheld under section 22 (Disclosure harmful to personal privacy).

  • The notice to the third party must include the following information in accordance with subsection 23(3): 

    • A statement that a request has been made under the Act by an applicant for access to a record that contains information the disclosure of which might affect the interests or invade the personal privacy of the third party;

    • A copy of the requested record.  If it is not practicable to send a copy of the record, include a description of the contents of the requested records.

    • A statement that, within 20 days of the date of the notice, the third party may consent to the disclosure or may make representations to the head of the public body explaining why the record or part of the record should not be disclosed.  Third party notice dates from the day the public body gives the notice, not the date the third party receives it.  The date on which the notice is sent is the date on which it enters the Canada Post mail system (postmark date).  If the notices first go through an internal mail system, the public body determines how many days delay this causes and postdates all notices accordingly.

    • The notice informs the third party that any response must be in writing.  A verbal response is not considered to be a response within the meaning of subsection 23(1).

The notice shall also:

  • include a summary of the exception that may apply to the information (either section 21 or section 22).  An understanding of the significance of the notice, the purpose of the exception and the type of information that it excepts from disclosure assists the third party in formulating a response.

  • provide an explanation of the points which the third party should address if she or he wishes to make representations on why her/his information should not be disclosed (i.e., the third party must provide details on the injury that would occur if the information were disclosed).

  • inform the third party that her/his representations may address only issues related to the applicability of section 21 or 22 to the request.

  • provide sufficient information to enable the third party to make an informed response.  The public body explains the request management process and the grounds on which information can be withheld under the Act.

  • include the name, the job title and the telephone number of a person within the public body that the third party may contact for more information.  Good communication with the third party ensures that the public body is fully informed of the third party's concerns when determining the applicability of the exception.

Where possible, the public body sends the notices by fax (if the public body can confirm the security of the transfer and that it will be received by the third party), with the originals following by mail, particularly if many notices are being sent to corporate third parties in connection with a request.  In exceptional cases, it may be advisable to send a notice by courier or registered mail.  Choose a delivery method that ensures that the notice arrives as soon as practicable, is as secure as possible and allows the third party as much time as possible to respond.

If necessary, telephone the third party before sending the notice to ascertain the name of the official best suited to prepare a response.

If the public body is aware that the third party is subject to legal disability, the public body sends notice to the committee, trustee or representative of the third party.

Examples

  • ABC Corporation goes into receivership.  The public body sends ABC's trustee third party notice of a request for records that may harm the corporation's business interests.

  • Mr. Jones is mentally ill and unable to look after his own affairs.  His niece, Charmaine, becomes his committee.  The public body sends third party notice to Charmaine if it intends to disclose personal information that might constitute an unreasonable invasion of Mr. Jones' personal privacy.

  • Mr. Bray's medical information appears in a requested record.  The public body is aware that Mr. Bray is deceased; therefore, any third party notice is sent to Mr. Bray's personal representative or his nearest relative.

  1. Notice to Applicant

Provide notice to the applicant at the same time and in accordance with the same time frame as third party notice is given.  See the discussion above.

Use the appropriate sample letter or a similar letter:

  • Letter 23-3:  Notice to Applicant Party Under Subsection 23(4)

The notice to the applicant shall contain, in accordance with subsection 23(4):

  • a statement that the requested record contains information the disclosure of which may affect the interests or invade the personal privacy of a third party;

  • a statement that the third party is being given an opportunity to make representations concerning disclosure; and,

  • a statement that a decision will be made within 30 days on whether or not to give access to the requested record.

  1. Extension of Time limits for Third Party Procedures

The public body must give third party notice within the original 30-day period after the request is received (section 7), or within the extended time period if the public body has extended the time limit (section 10).

Once third party notice has been given, the initial 30-day (or extended) time limit allowed under section 7 for response to a request no longer applies.  Section 23 now governs the time limits for request management procedures.  If more time than a total of 60 days from the date of receipt of the request is needed to complete third party notice procedures, the public body must ask the Commissioner for permission for the longer extension.

The time limits under section 23 are summarized in the following chart:

Step Step Description Time Limit
1.

Notice to Third Party and Applicant

As soon as possible, but at least within 3 days of receipt of request (unless time limit is extended)

2.

Response from Third Party

Within 20 days after Notice to Third Party and Applicant (1)

In some cases, however, additional time may be needed to complete third party notices.  A public body may extend the time limit for response by up to 30 days beyond the section 7 time limit of 30 days from the receipt of the request.  Any longer extension must be approved by the Commissioner.  Additional time may be needed in the following circumstances:

  • The public body has to consider a large number of third party representations; or
  • The public body needs to consult further with third parties to clarify representations.

If possible, the public body makes the decision on whether or not an extension is needed when it gives notice to the third party and the applicant under subsection 23(1).  If the public body cannot make an informed estimate of the time required for third party notice provisions at the time notice is given under subsection 23(1), it may be necessary to delay the decision on extension until the responses from the third parties have been received.

The applicant has the right to complain to the Commissioner about an extension of the time limit.

Both the third parties and the applicant are informed of an extension to the time limit when the third party notices are sent under section 23(1).

  1. See section 24 for Public Body’s Decision - Consideration of the Response from the Third Party

Interpretation

Interpretation Note 1:

There are three key scenarios that arise with respect to third party information and notice:

  1. The public body reviews the records and concludes that disclosure of the information does not harm business interests under section 21 or does not invade personal privacy under section 22.  In this situation, the Act does not require notice despite the fact that the records include third party business or personal information. 

  2. The public body reviews the records and concludes that disclosure of the information is harmful to business interests under section 21 or unreasonably invades personal privacy under section 22.  The head must withhold the information.  The head is not required to give notice to the third party but may choose to do so.

  3. The public body reviews the records and concludes that disclosure of the information, on balance, might harm business interests under section 21 or might unreasonably invade personal privacy under section 22.  If the head intends to disclose the information, the head must notify the third party of the request and provide the third party with the opportunity to make representations regarding the disclosure of the information.  If the head intends to withhold the information, the head is not required to give notice but may choose to do so.

To avoid unnecessary delay in responding to a formal request under the Act, the public body gives third party notice as early as possible in the management of the request.  The public body must give third party notice within the original 30-day period after the request is received, or within the extended time period if the public body has extended the time limit (under section 10) for response for a reason other than consultation with a third party.  Once third party notice has been given, the initial 30-day time limit allowed under section 7 for response to a request no longer applies.  Section 23 now governs the time limits for request management procedures.  If more time than a total of 60 days from the date of receipt of the request is needed to complete third party notice procedures, the public body must ask the Commissioner for permission for the longer extension.  See Extension of Time limits for Third Party Procedures above.

In addition to section 23, three other sections of the Act ((sections 22(4)(b), 25 and 33(p)) set out mandatory third party notice requirements in certain compelling circumstances affecting a person's health or safety or the public interest.  The time limits for response and decision on access which are set out in section 23 do not apply to these notices of disclosure.

Interpretation Note 2:

There is an important distinction between third party notice and third party consultation.  In some cases a public body may choose to consult with a third party during the consideration of a formal request despite there being no requirement under the Act to contact that third party.

Where a public body chooses to consult, it informs the third party that it is only seeking input to aid in the public body's decision, and that the third party is not entitled to make formal representations under the Act.

Example

  • A public body requests advice from a scientific expert to help in assessing harm when considering whether to deny access to a record under section 18 (Disclosure harmful to the conservation of heritage sites).

  • The third party notice provisions of section 23 do not apply to this type of third party consultation.

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Appendices

LETTERS:
23-1:  When information may be withheld under section 21
23-2:  When information may be withheld under section 22
23-3:  Notice to Applicant Party Under Subsection 23(4)

Last updated: July 17, 2007