Section 24 - Time limit and notice of decision

Overview

Section 24 specifies when the head is required to provide a decision on access to the requested record after giving third party notice under section 23.

Section Preference

Section 24 of the Freedom of Information and Protection of Privacy Act

24 (1) Within 30 days after notice is given under section 23(1) or (2), the head of the public body must decide whether or not to give access to the record or to part of the record, but no decision may be made before the earlier of

(a) 21 days after the day notice is given, or

(b) the day a response is received from the third party.

(2) On reaching a decision under subsection (1), the head of the public body must give written notice of the decision to

(a) the applicant, and

(b) the third party.

(3) If the head of the public body decides to give access to the record or to part of the record, the notice must state that the applicant will be given access unless the third party asks for a review under section 53 or 63 within 20 days after the day notice is given under subsection (2).

Summary

Section 24 of the Act requires the head of the public body to make a decision on access to the requested record within 30 days of the date on which the third party notice was given. This section further requires the public body to give notice of this decision to both the third party and the applicant.

Policy

  1. In deciding whether or not to give access to all or part of the requested record, the head considers any third party responses received in reply to notices given under subsections 23(1) or (2).  Responses from the third party to notices given under subsection 23(1) or (2) must be in writing.

  2. The third party's representations may address only issues related to the applicability of either section 21 or section 22 to the request.  Representations related to other exceptions will not be considered by the head in reaching a decision on access.

  3. If the third party responds by consenting to disclosure of the information, the head of the public body discloses the information unless another of the Act's exceptions applies.  Consent to disclosure of third party business information may be given by an officer, employee or member of the corporate body who is empowered to act on its behalf.  The individual giving consent must be exercising authority delegated by the head of the corporate body.  A letter from the head of the corporate body is required to show that authority has been delegated.

  4. If the third party does not respond to the notice within 20 days, the head shall make a decision based on the information available. Failure to respond does not imply the third party's consent to the disclosure of the information. If, despite a lack of response, the public body believes the third party would object to disclosure of the information, the public body shall make further reasonable attempts to contact the third party to determine their wishes.

  5. If the third party makes representations on why the information should not be disclosed, the head shall consider these representations in reaching a decision on access.  If, from the third party's response, it appears that the third party has not understood the significance of the notice, the public body shall contact the third party by telephone to discuss the matter.

  6. As soon as the head has made the decision on access to the record, the head gives written notice of this decision to both the applicant and the third party.

  7. If the head has decided to give access to the record or to part of the record, the notices to the applicant and the third party shall:

  • include information about the third party's right to ask the Commissioner to review the decision; and,

  • state that the applicant will be given access unless the third party asks for a review within 20 days after the notice of decision is given.

  1. If the decision of the head is to give access to the record or part of the record in spite of the representations from the third party:

    1. The head waits for a 20-day period after the notice of decision is given before the applicant may be given access.  This 20-day period allows the third party time to ask the Commissioner to review the decision.  This 20-day period is calculated from the date the head gives the notice, not from the date the third party receives the notice.

      Note that the third party has only 20 days in which to request review of a decision under section 24, not the 30 days allowed under sections 53 or 63. (This period is shorter than the usual time allowed for requesting a review because the third party has already had time in which to prepare arguments on why the information should not be disclosed.)

    2. The applicant is not given access to any record or part of a record that is the subject of third party representations until the end of the 20-day period.  If the third party representations affect only some of the requested records, the public body releases the remainder of the records to the applicant.

    3. If the third party does not request a review within the 20-day period, the applicant is given access to any record or part of a record that is the subject of the third party representations as soon as this period has elapsed.

  2. If the head has decided to give access to the record or part of the record, and the third party does request a review by the Commissioner, then the time limit for responding to the request is extended under paragraph 10(1)(d).  The applicant is not given access to any record or part of a record that is the subject of the review until the review is completed.  If the review affects only some of the requested records, the public body releases the remainder of the records to the applicant.  The outcome of the review determines whether or not access is given to any records that are the subject of review.

Procedure

  1. Public Body’s Decision - Consideration of the Response from the Third Party 

The third party has 20 days after the notice is given to respond, either by consenting to the release of the information or by making representations explaining why the information should not be released.  The head may not make a decision until after the third party has had an opportunity to respond to the notice.  Since the third party has up to 20 days to respond, the head's decision on access may not be made until the earlier of:

  • 21 days after the notice was given under subsection 23(1); or,
  • the day a response is received from the third party.

The head of the public body must decide whether or not to give access to all or part of the record. The decision is to be made no later than 30 days after the notice has been given to the third party.

If no response is received within 20 days after the notice of decision is given, the head of the public body decides, based on the available information, whether or not to give access to the record.

The head of the public body has a minimum of 10 days in which to review the third party response (if there is one) and make a decision on access.  More time may be available if the third party response is received before the end of the 20-day period allowed for response.

Third party representations may address only issues related to the applicability of either section 21 or 22 to the request.  Representations related to other exceptions need not be considered by the head in reaching a decision on access.

  1. Extension of Time Limits for Third Party Procedures

The time limits under sections 23 and 24 are summarized in the following chart:

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

Step

Step Description

Time Limit

1.

Notice to Third Party and Applicant

As soon as possible, but at least within 30 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)

3.

Decision by the head of the public body

Within 30 days after
Notice to Third Party

 and Applicant (1) but not before the Response from Third Party (2)

4.

Notice of Decision to applicant and third party

As soon as the decision is made (3)

5.

Request for review of decision by third part

Within 20 days after Notice of Decision (4)

6.

Access to the record

20 days after Notice of Decision (4)

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.

  1. Severance

  2. Notice of Decision to Third Party and Applicant

Once the head of the public body has made the decision on access, the head gives both the applicant and the third party notice of the decision.

Use the appropriate sample letter or a similar letter:

Letters

  • Letter 24-4:  Notice to Applicant

Option A and Part B:

  1. Third party representations received.
  2. Third party objecting to disclosure.
  3. Public body decides to refuse access to records.

Option B: 

  1. Third party representations received, objecting to disclosure.
  2. ALTERNATIVELY, no response received from the third party.
  3. Public body decides to give access to all or part of the records.

Option C:

  1. Third party consented to disclosure of information.
  2. Public body decides to give access to all or part of the records

Option D and Part B:

  1. Third party consented to disclosure of information.
  2. Public body decides to refuse access to the records because another exception applies.
  • Letter 24-5:  Notice to Third Party

  1. Third party representations received.
  2. Third party objecting to disclosure.
  3. Public body decides to refuse access to records.
  • Letter 24-6:  Notice to Third Party

  1. Third party representations received.
  2. Third party objecting to disclosure.
  3. Public body decides to give access to all or part of the records.
  • Letter 24-7:  Notice to Third Party

  1. Third party representations received.
  2. Third party consenting to disclosure.
  3. Public body decides to refuse access to the records because another exception applies.
  • Letter 24-8:  Notice to Third Party

  1. Third party representations received.
  2. Third party consented to disclosure of information.
  3. Public body decides to give access to all or part of the records.
  • Letter 24-9:  Notice to Third Party

  1. Third party representations not received.
  2. Public body decides to refuse access to the records.
  • Letter 24-10:  Notice to Third Party

  1. Third party representations not received.
  2. Public body decides to give access to all or part of the records.

The outcome of any reviews conducted by the Commissioner will determine whether or not access is provided to any records that were the subject of the review. 

  1. Release of Records

Once all determinations have been made, the records are then released in the manner described in section 8 and section 9 of the manual.

Interpretation

Interpretation Note 1:

In determining the sufficiency or insufficiency of the section 24 time limit and whether an extension of the time limit should be sought for third party consultations, the public body should analyze the situation through a series of time calculations similar to those conducted in the following two examples:

Examples

  1. Three P Pulp Mill Company has submitted detailed technical and financial information to the Ministry of Environment in support of a proposed expansion of its mill, so that an environmental impact assessment can be completed before a decision is made on whether or not to approve the expansion.  The Ministry receives a formal request under the Act for a copy of Three P's proposal.

  • The Ministry completes its preliminary assessment of the records on the 11th day after receiving the request and determines that the records contain information about Three P Pulp Mill's financial situation and technical information about proprietary technology to be used in a new effluent treatment system.  The Ministry believes that this information may have to be withheld under section 21 (harm to the business interests of a third party) and gives third party notice.  The notice is dated on the 13th day, because the Ministry customarily postdates its third party notices by 2 days to allow for the time required to get mail into the Canada Post system

  • The Ministry now has 30 days from the date of the third party notice to respond to the request by notifying the applicant of the decision, i.e., the Ministry must respond on or before the 43rd day after the request was originally received.

  • Three P Pulp Mill has up to 20 days from the date of the notice to respond - its response may be received as late as the 33rd day from receipt of the request.

  • The 33rd day is a Friday - allowing 2 additional days for the weekend, the Ministry will be begin to consider Three P's response on the 36th day.

  • The Ministry estimates that it requires 3 working days to consider Three P's response, make a decision on access and prepare the response package for the applicant - the notice of decision will be given on the 39th day after receipt of the request, well within the time limit allowed under subsection 24(1).

  1. A public body receives a request for records containing financial information about 50 companies and sends notice to these affected third parties on the 25th day after the request is received.  The public body expects that most of the companies will make representations objecting to the release of some of the information.  Because the companies operate in a volatile and complex market, the public body expects that the companies will take at least two weeks to prepare their responses and that the representations will raise a number of issues requiring further clarification.

  • The public body decides that an extension will be needed, based on the following calculations: the third parties have until the 20th day after notices were given (that is, until the 45th day after receipt of the request) to respond.  The public body estimates that 20 calendar days will be needed to clarify the representations received, consider the issues raised and make a final decision.  The public body therefore expects to make the decision on access on or before the 40th day after notice was given (that is, the 65th day after receipt of the request).  Under paragraph 10(1)(c), the public body asks the Commissioner to permit an extension of 35 days beyond the 30 days from date of receipt allowed under section 7.

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

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.

Last updated: July 17, 2007