Section 4 - Information rights
Last updated on October 19, 2022Overview
Section 4 establishes the key access principle of the Act: the public has a right of access to records in the custody or under the control of a public body. That right of access is limited by the exceptions to disclosure contained in the Act and is subject to the payment of fees.
Section Reference
Section 4 of the Freedom of Information and Protection of Privacy Act
4 (1) Subject to subsections (2) and (3), an applicant who makes a request under section 5 has a right of access to a record in the custody or under the control of a public body, including a record containing personal information about the applicant.
(2) The right of access to a record does not extend to information that is excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record, an applicant has a right of access to the remainder of the record.
(3) The right of access to a record is subject to the payment of fees, if any, required under section 75.
Summary
Section 4 establishes the general right of access to records in the custody or under the control of a public body. This general right of access includes the presumption that records should be fully disclosed, unless the public body can justify severing information within the records using one of the exceptions to disclosure.
The Act and regulations do not limit access to records that may be made available through other means (e.g., routine releases, disclosure pursuant to other enactments, disclosure through court processes, etc.)
The right of access applies to records already in existence; access requests cannot seek records that do not yet exist, but which are expected to be created in the future. Public bodies are not required to create records to respond to formal requests (except where required under section 6 (2)) but should consider doing so if it helps respond to a request and fulfill the duty to assist set out in section 6 (1).
When a public body receives a formal request for access to records, the public body should consider all responsive records in its custody or under its control as available to the requester (Interpretation Note 1). Once all the responsive records are located, further determinations may then occur about whether any of the records are outside the scope of FOIPPA (as outlined in Section 3) or whether any information within the records falls under the exceptions to disclosure.
Section 4 (2) establishes the obligation of a public body to conduct a line-by-line review of the records and to release any and all information not subject to exception under the Act, if the excepted information can reasonably be severed from the rest of the record. (Interpretation Note 2)
Section 4 (3) establishes that the right of access is subject to the payment of fees, if required, under section 75.
Interpretation
The terms “custody” and “control” are not defined within the Act but have been the subject of significant analysis and adjudication by the Office of the Information and Privacy Commissioner and the courts. The current understanding of these terms is heavily informed by these past decisions.
Records being “in the custody” of a public body denotes that a public body has both physical possession of the records, as well as a legal right to those records. It is not enough that the records physically reside within the office of the public body if the public body does not have a legitimate ability to view and use those records.
Records being “under the control” of a public body describes a situation in which a public body may exercise control over records even though the records are not in its physical custody.
Examples of "Custody" and "Control"
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Semi-active records of a public body, held in contracted off-site storage by the British Columbia Archives (BCA) are under the control of the public body, not BCA, even though they are in BCA's physical custody.
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Inactive or archival records of a public body that have been transferred to BCA, under an approved records retention schedule, are in the custody and under the control of BCA, not the public body.
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Where public body A stores records on behalf of public body B due to B's office space restrictions, A does not have "custody" of B's records if access to the records is restricted to B's personnel.
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Constituency records of a minister which are kept separate from ministerial records are not in the custody or control of the ministry.
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Records kept by a union shop steward at their place of work, that relate only to their shop steward function, are not in the custody or under the control of the public body even though they are stored on the premises of the public body.
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Journals or notebooks of public employees used for work purposes are in the custody of the public body. Personal information not related to the person’s duties as an employee of the public body is severed before disclosure. Journals or notebooks of employees used for personal purposes would be excluded from the act under subsection 3 (5) (b).
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Records produced by legal counsel at Legal Services Branch, Ministry of Attorney General, acting as legal counsel to a public body, are under the control of the public body, but will also be in the custody or control of the Ministry of Attorney General. This includes legal opinions.
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A legal opinion produced by a lawyer from a private law firm acting as legal counsel for a municipality is under the control of the municipality.
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A management consulting firm is retained to report on the management of a public body. Records that the public body requires for its operational needs remain in the control of the public body, even where they are in the custody of the consulting firm.
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An agency that is funded by government grants is not a public body, but the agency's records may be in the custody and, in this example, under the control of a public body if the public body has possession of and has assumed responsibility for the agency's records.
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Where a public body's databases contain government information mixed with information provided by a third party, the third party's information is in the custody and control of the public body. Applicants may request access to the third party's information held by the public body (the section 21 exception may apply).
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Logbooks kept by volunteer firefighters for a municipality are under the control of the municipality.
"Reasonably be severed" means that after the excepted information is removed from a record, the remaining information is both intelligible and responsive to the request. See Severance.
Proper severance ensures public bodies meet their obligation to provide records responsive to a formal request and promotes the information rights of applicants. Any doubts about whether the remaining information is understandable are generally resolved in favour of release. Occasionally, however, records cannot reasonably be severed, because the remaining information is unintelligible or meaningless. In those circumstances, it is appropriate to sever all the information.
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