Section 52 - Right to Ask for a Review

Overview

This section provides applicants with the right to ask the Information and Privacy Commissioner (Commissioner) to review any decisions, actions or omissions of a head of a public body in relation to a request under the Act, unless the decision was made by the Commissioner in relation to records of the Office of the Commissioner.

Third parties who have been notified of a decision to give access to information that might harm their personal privacy or their business interests also have a right to ask the Commissioner to review any decision the head of a public body makes in relation to that request before any information is disclosed, unless the decision was made by the Commissioner in relation to records of the Office of the Commissioner.

In circumstances where the records are the responsibility of the Commissioner, an applicant or third party may seek a review by an adjudicator under section 60.

Section Reference

Section 52 of the Freedom of Information and Protection of Privacy Act

1. A person who makes a request to the head of a public body, other than the commissioner or the registrar under the Lobbyists Registration Act, for access to a record or for correction of personal information may ask the commissioner to review any decision, act or failure to act of the head that relates to that request, including any matter that could be the subject of a complaint under section 42(2).
2. A third party notified under section 24 of a decision to give access may ask the commissioner to review any decision made about the request by the head of a public body, other than the commissioner or the registrar under the Lobbyists Registration Act.

Summary

A person who has made a request for access to a record or a request for correction of personal information under the Act has the right to ask the Commissioner to review any decision, act or failure to act of the head of the public body with respect to that request. The Commissioner may not review decisions that the Commissioner has made in relation to records in the custody or control of the Office of the Commissioner. In those circumstances, the person may request an adjudicator review the actions of the Commissioner as outlined in section 60.

A third party notified under section 24 of a decision to give access has the right to ask the Commissioner for a review of the decision of the head of a public body.

Policy

1. Public bodies should communicate effectively with applicants in order to avoid the necessity of an applicant seeking a formal review of a decision of the head of the public body.

Procedure

The public body has an obligation to notify an applicant and if appropriate, any third parties of their right to seek a review of any decision, action or failure to act of the head of the public body. This notification should be included in all correspondence between the public body and the applicant or third party.

Interpretation

Interpretation Note 1:

The Commissioner’s review of the decision of the head of a public body is intended to be an avenue of last resort. In most cases, the applicant will be satisfied that the public body has acted responsibly and any outstanding issues are settled between the public body and the applicant. Even in cases where the applicant asks the Commissioner to review a decision, issues can be settled through mediation and a formal hearing may not be necessary.

The right of an impartial review of the decisions or actions of the head of a public body is fundamental to guaranteeing freedom of information and privacy rights. The review mechanism ensures that these rights are interpreted consistently by all public bodies and that the purposes of the Act are achieved. The orders which summarize the reviews, issues and findings also provide guidance to public bodies regarding the proper interpretation of the Act.

Grounds for requesting a review

The Commissioner may review any decision, act or failure to act by the head of a public body in relation to a request for access to a record or a request for correction of personal information including, but not limited to, the following grounds:

• A refusal to grant access to a record on the ground that the record is excepted from release under sections 12-22 (Exceptions);
• A refusal to grant access to a record on the ground that the record does not exist;
• A decision to grant access to only part of the record requested;
• A failure of the head to exercise proper discretion in excepting information from release under sections 13 to 20;
• A decision to grant access to a record that contains information that may harm personal privacy or business interests of a third party;
• A refusal to confirm or deny the existence of a record under section 8(2) (Contents of a response);
• A refusal to allow the applicant to examine the original record under section 9(3) (How access will be given);
• A decision to extend the time limit under section 10 for responding to a request;
• A refusal to make a correction to personal information as requested under section 29;
• A decision regarding the amount of a fee charged or the failure to waive a fee under section 75; and
• Any decisions that are grounds for complaint under section 42(2) (General powers of commissioner).

Section 53 (How to ask for a review) contains the time limits for the exercise of the right established by this section.

Under section 62 (Right to ask for a review) a person may ask an adjudicator to review a decision made by the commissioner as head of a public body.

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: August 22, 2007