Section 23 - Notifying the third party

Overview

Section 23describes requirements for public bodies in situations where an access request contains records that may result in harm to a third party if disclosed. 

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 18.1,21 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 18.1, 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 information about third parties (which may include individuals, companies, non-profit groups, Indigenous peoples, or others). During the processing of an access request, public bodies must consider whether disclosure of information might result in harm to a third party. 

Public bodies will not always be in the best position to accurately determine whether disclosure of information will result in harm to a third party. Sections 23 and 24 of FOIPPA establish a framework to formally involve third parties in making that determination of potential harm. This framework ensures that the affected third parties are given formal notice prior to disclosure, the opportunity to make representations, and a right of review with the Commissioner’s office. 

If third party notice is given, the applicant is also notified that the public body has asked the third party to submit representations and that the response to the access request will be delayed, to allow time for consideration of these representations.  

Third party notices issued under section 23 must also meet requirements set out in section 24 (Time limit and notice of decision). 

Policy

  • Written notices issued under section 23: 

  • Must be sent electronically whenever possible. 

  • Must be sent to the applicant and the third party on the same day. 

  • Must not disclose the identity of the applicant or the third party to each other. 

  • Notice must 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). 

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

Procedure

1. Determine whether Third Party Notice is required 

  • The third party notice provisions of section 23 apply only to information which might fall under section 18.1 (Disclosure harmful to interests of an Indigenous people), section 21 (Disclosure harmful to business interests of a third party) or section 22 (Disclosure harmful to personal privacy).

  • Issuing 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. 

  • The Third Party Notice process adds significant additional time and effort to the processing of a request It should only be used for the reasons contemplated by the Act, and not as a way to notify a third party that their information will be disclosed. Nor should it be used to give a third party standing to challenge disclosure when there is no reasonable basis for withholding the information under FOIPPA. There is an important distinction between third party notice and third party consultations, see Third Party Consultations in the Interpretation section below. 

2. Identify the affected Third Party 

  • In most cases, the affected third party will be self-evident from the records. If the third party is an organization or group, it is often helpful to contact the third party before sending the formal notice to ascertain the name of the official best suited to prepare a response, and to ensure that contact information is up to date. 

  • In some cases, the public body may need to ascertain the identity of the third party that may be harmed by disclosure and may have to work with the program area where the records originated to make that determination.  

  • If the records relate to an Indigenous people and the affected third party is not obvious from the records themselves, public bodies may wish to consult with the Indigenous people noted in the records to identify the most appropriate representative. If it is not obvious from the records themselves, public bodies may wish to review the First Nations A-Z Listing, the Guide to Indigenous Organizations and Services and/or the Profiles of Indigenous Peoples (internal/IDIR restricted) to identify the most appropriate representative of an Indigenous people for the purposes of Third Party Notice or seeking written consent for disclosure. 

  • If more than one third party is affected by the disclosure of information in the record, the public body must give separate notice to each affected third party. Each third party should receive only the information that is relevant to them. The public body may need to provide a severed version of the records to each relevant third party to accomplish this. 

  • 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 where notice may go to a representative 

  • ABC Corporation goes into receivership. The public body sends the third party notice to ABC's trustee. 

  • Mr. Jones is living with a mental impairment and is unable to look after his own affairs. His child, Matt, becomes his committee. The public body sends third party notice to Matt 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 nearest relative. 

3. Prepare Notice for the Third Party

  • Sample letter templates: 

    • 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 

  • Where possible, the public body should send the notices electronically and request confirmation from the third party that the notice has been received. 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. 

  • Subsection 23 (3) sets out minimum requirements for the contents of the notice to the third party. However, public bodies and FOI professionals need to be mindful that third parties typically won’t be well-versed in FOIPPA. To assist the third party in formulating a response, it is strongly recommended that public bodies include additional information and context to explain the process: 

  • an explanation about the significance and purpose of the notice 

  • a summary of the exception that may apply to the information (either section 18.1, 21 or 22) 

  • an explanation of the points which the third party should address if they wish to make representations on why the information should not be disclosed (i.e., the third party must provide details on the harm that would occur if the information were disclosed) 

  • an explanation that representations may address only issues related to the applicability of section 18.1, 21 or 22 

  • provide sufficient information to enable the third party to make an informed response. 

  • contact information of a person within the public body that the third party may contact for more information 

4. Prepare Notice to Applicant  

  • Sample letter template:
  • Letter 23-3:  Notice to Applicant Party Under Subsection 23(4) 
  • Subsection 23 (4) sets out minimum requirements for the contents of the notice to the applicant. However, public bodies and FOI professionals need to be mindful that third parties typically won’t be well-versed in FOIPPA.  

  • To assist the applicant in understanding the process, it is strongly recommended to include information and context to explain the process: 

    • an explanation about the significance and purpose of the notice 

    • contact information of a person within the public body that the applicant may contact for more information 

5. ​​​​Establishment of a new timeline 

When records are sent for Third Party Notice, a new timeline is established for the response to the applicant. The timelines in Sections 23 and 24 supersede any other timelines that may have previously been established by Sections 7 or 10 of FOIPPA, but only for the portion of the records that are subject to third party notice. 

This may give rise to a situation where a single access request has two different timelines with different due dates. 

  • Records that are subject to Third Party Notice procedures are managed in accordance with the timelines set out in sections 23 and 24. 

  • Records that are not subject to Third Party Notice are managed in accordance with the timelines set out in sections 7 and 10. 

The leading case law on this topic was established in a 2009 BC Supreme Court judgment which upheld the interpretation that “those records or parts of a record that are not subject to sections 23 and 24 (1) remain subject to the 30-day response provision with which s. 7 opens.” 

The timelines set out in sections 23 and 24 are fixed and there is no mechanism established within the Act to formally modify or extend them. 

  • Public bodies may elect to accept a late submission from a third party (i.e., outside of the 20-day window contemplated in 23 (3) (c)) if the public body is still able to make its decision within the 30 days allowed by 24 (1). 

Section 24 of the FOIPPA manual contains a more comprehensive outline of the overall timelines for Third Party Notice. 

Interpretation 

Interpretation Note 1: Typical Scenarios 

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 the interests of an Indigenous people under section 18.1 or does not harm business interests under section 21 or does not invade personal privacy under section 22.  In this situation, notice should not be issued, even though the records include third party information.  

  1. The public body reviews the records and concludes that disclosure of the information is harmful to the interests of an Indigenous people under section 18.1 or 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. 

  1. The public body reviews the records and concludes that disclosure of the information, on balance, might harmthe interests of an Indigenous people under section 18.1 or 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. 

To avoid unnecessary delay in responding to a formal request under the Act, the public body should give third party notice as early as possible in the management of the request. 

In addition to section 23, three other sections of the Act (sections 22 (4) (b), 25 and 33 (3) (a)) 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: Third Party Consultations 

There is an important distinction between third party notice and third party consultation. In some cases, a public body may choose to consult with, or notify 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, nor is the third party entitled to request that the Commissioner review the public body’s decision. 

Examples of Third Party Consultation 

  • 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). 

  • A public body notifies a third party as a courtesy, to inform them that a contract it has signed with the public body will be disclosed in response to an access request. 

Interpretation Note 3: Written representations

Section 23 (3) (c) notes 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. 

The written representations may be made in the form of a letter, fax, email, or other written communication submitted to the public body in which the third party clearly states: 

  • what specific information the third party considers to be harmful or of particular; and 

  • why the information should not be fully disclosed or partially disclosed.  

The public body will take into consideration any written representations received from third parties when deciding whether to withhold information from the records. 

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: June 2022