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Section 8 - Contents of response

Last updated on October 19, 2022

Overview

Section 8 of the Act sets out minimum requirements for a public body’s response to a formal access request under the Act. It also allows, in specific circumstances, a public body to neither confirm nor deny the existence of records. 

Section Reference

Section 8 of the Freedom of Information and Protection of Privacy Act

8 (1) In a response under section 7, the head of the public body must tell the applicant

(a) whether or not the applicant is entitled to access to the record or to part of the record,

(b) if the applicant is entitled to access, where, when and how access will be given, and

(c) if access to the record or to part of the record is refused,

 (i) the reasons for the refusal and the provision of the Act on which the refusal is based,

(ii) the name, title, business address and business telephone number of an officer or employee of the public body who can answer the applicant’s questions about the refusal, and

(iii) that the applicant may ask for a review under section 53 or 63.

(2) Despite subsection (1)(c)(i), the head of a public body may refuse in a response to confirm or deny the existence of

(a) a record containing information described in section 15 (information harmful to law enforcement) or

(b) a record containing personal information of a third party if disclosure of existence of the information would be an unreasonable invasion of the party’s personal privacy.

Summary

Section 8 sets out the basic requirements around final responses to FOI requests. This section should be read in conjunction with section 9, which contains basic requirements around providing access to records. 

The final response is the last in the series of steps involved in responding to a formal request. The final response informs the applicant of the public body's decision to either grant or deny access to all or part of the requested records, contains additional information that may be helpful to the applicant, and informs the applicant of their right to ask the Information and Privacy Commissioner to review the public body's decision.   

If the public body is refusing access to any part of the records, it must inform the applicant of the basis for that refusal (see Interpretation Note 1). The applicant is also provided with the contact information of an employee or officer of the public body who will be able to answer any questions the applicant may have. In addition, the response must inform the applicant or their right to request a review of the decision under section 52 or 62 and the process for requesting that review. 

The public body may refuse to confirm or deny the existence of a record in the circumstances described in section 8(2) (see Interpretation Note 2). 

Policy

  1. Public bodies must issue responses under Section 8 in writing.  

Procedure

The following letters provide guidance in drafting the various types of final responses to formal requests under the Act.

  1. Letter 8-1: Response to Access Request – Granting Full Access 

  2. Letter 8-2: Response to Access Request – Granting Partial Access 

  3. Letter 8-3: Response to Access Request – Denying Access 

  4. Letter 8-4: Response to Access Request – Refuse to Confirm or Deny 

Interpretation

Interpretation Note 1 (Section 8(1)(c)): Reasons for refusal to disclose information 

Reason for refusal - information is subject to an exception: 

If the applicant is refused access to all or part of a record, the public body must specify all the exceptions under which information is being withheld, including where more than one exception may apply to the same information. In addition, the public body must also provide the reasons for non-disclosure of the requested information, if the reasons can be disclosed without revealing the substance of the withheld information. The OIPC has taken the position that the reasons for refusal should, if possible, be more than a mere repetition of the section of the Act used and be as complete as possible. For example, in order F20-18 the OIPC adjudicator wrote: 

When a public body refuses access to information, it has a duty under s. 8 (1) (c) to give “the reasons for the refusal and the provision of this Act on which the refusal is based” (emphasis added). As this language makes clear, a public body cannot simply cite a FIPPA provision when refusing access. It also has a duty to provide reasons explaining how it decided that the cited provision applies to the withheld information. 

The level of detail required will depend on the circumstances of each case, including the nature and number of the records involved. Numerous previous OIPC orders have also contemplated this issue, including: Order 323-1999, 00-01, 00-42, 00-51 and F06-16. 

Example: 

  • If the public body is withholding advice to the minister in accordance with section 13, the public body could provide a response along the lines of: Information in the record you requested has been withheld in accordance with section 13. Section 13 protects information that would reveal advice or recommendations developed by or for a public body or a minister. The information in the record is advice to the Minister developed by staff in one the ministry’s program areas regarding the implementation of a proposed project. Such information is protected by section 13. 

Reason for refusal - Record does not exist: 

A public body may receive requests for records that do not exist. In such cases, the response letter informs the applicant of the steps that the public body has taken to determine that the requested records do not exist. 

In some cases, the request may relate to a record that has been destroyed prior to the receipt of the request in accordance with an approved information schedule. Where this is the case, the public body informs the applicant when and under what authority the record was destroyed. If the public body does not have these details, but knows that the record was destroyed, as may be the case with requests for older records, it conveys this information to the applicant. 

See Letter 8-3: Response to Access Request – Denying Access. 

Reason for refusal – information is “Out of Scope” or “Not Responsive” to the request 

When responding to an FOI request, public bodies should not include any records that are non-responsive to the request, or which fall outside the scope of the request parameters. However, there may be instances where a responsive record also contains some non-responsive information. 

When this occurs, public bodies are not permitted to refuse to disclose information within a responsive record on the basis that the information is “out of scope” or “not responsive” to the request. When refusing to disclose information within a record, public bodies must be able to cite a relevant section of FOIPPA authorizing that refusal. There is no section of FOIPPA authorizing public bodies to withhold information on the basis of being “out of scope” or “not responsive.” 

OIPC Order F15-23 was entirely devoted to adjudicating this issue and represents the leading case on this matter. In that order, the deputy commissioner wrote: 

The language of all of s. 8(1) […] makes it clear that “access to the record or to part of a record” may, consistent with the language of the s. 4(2) derogation, be refused only where a “provision of this Act” authorizes or requires refusal. This can only plausibly refer to an explicit provision of FIPPA as authority to refuse access, not unwritten, or read-in, language that the Legislature did not state. 

Interpretation Note 2 (Section 8(2)): 

May refuse in a response to confirm or deny the existence of a record 

In some circumstances, the mere knowledge that a record exists will cause harm to law enforcement or will unreasonably invade the personal privacy of a third party. Therefore, the head of a public body may refuse to confirm or deny the existence of such a record, as outlined in section 8(2)(a) and (b). 

Under section 8(2)(a), if a record contains information described in section 15, the head of the public body is permitted to refuse to confirm or deny its existence. 

Example: 

  • Disclosure of records that would harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement. 

Under section 8(2)(b), if a record contains personal information of a third party, and if the disclosure of the existence of the information would result in an unreasonable invasion of a third party’s privacy in accordance with section 22, the head may refuse to confirm or deny the existence of the record. 

Example: 

  • A journalist requests information on psychiatric treatment given to a politician. Such information is personal to the politician and the head of the health care body could decide to deny access to the politician’s health records. Such a denial would, however, reveal the fact that the politician had received psychiatric treatment. This revelation would in itself constitute an unreasonable invasion of personal privacy. The head of the health care body therefore decides neither to confirm nor deny the existence of the politician’s psychiatric files. 

If an applicant asks the Commissioner to review a refusal to confirm or deny the existence of a record, the public body bears the burden of proof to show that section 8(2) is applicable. 

Sectional Index of Commissioner's Orders

The Office of the Information and Privacy Commissioner maintains a Sectional Index of Commissioner’s orders organized by the Act’s section numbers.  

The information in this manual is not intended to be and should not take the place of legal advice.   

Last updated: October 2022