Explainer: What is an FOI request and how do you make one?

You may have heard the term FOI or Freedom of Information, especially over the past several months.

That’s because B.C. passed legislation in late 2021 that applies a $10 fee to every single request made to the provincial government, including all of its ministries. The fee can also be applied by other public bodies such as municipalities, health authorities and school districts.

The move has drawn criticism, mostly from journalists and opposition parties, who say it limits transparency and hurts democracy.

But what is a Freedom of Information request anyway and do they even matter?

An FOI is essentially a request for public information held by a public body or agency such as the provincial government, a municipality or regional district, health authority, transit commission, school district, post-secondary institution, or police department, that is not routinely disclosed.

All individuals have the right to access public information — including their own personal information — held by the provincial government as well as public bodies or agencies in British Columbia under the province’s Freedom of Information and Protection of Privacy Act (FIPPA).

The Office of the Information and Privacy Commissioner B.C. (OIPC) is the organization responsible for overseeing information and privacy practices, including the handling of FOIs by public bodies and private organizations in this province.

A full list of public bodies and agencies in B.C. can be found here.

Why are FOIs important?

FOIs are important because they enable individuals to not only access their own information but obtain other public information that isn’t routinely disclosed by the provincial government, municipal governments, public bodies.

“Freedom of information is a key pillar of our democratic system and what it does ensure is that our governments are held accountable. You can’t hold your governments accountable unless you know what they’re doing and getting information about what they’re doing is a key part of freedom of information,” explains Michael McEvoy, B.C.’s Information and Privacy Commissioner and head of OIPC.

Bob Mackin, journalist and owner of theBreaker.news who has filed thousands of FOI requests throughout his career, says while governments routinely release certain information, there is a lot more that is hidden from the public.

“Governments, especially in Canada, probably more than the United States have very sophisticated communications infrastructures. And, that has been politicized over the years. Our politicians, essentially are in permanent campaigns, and they have at their disposal taxpayer-funded communications departments, that pump out information that the government wants us to know,” he says. “The difference is with freedom of information. That’s information we want to know, information we need to know. That’s information that’s often not delivered to us.”

There are many examples of public interest news stories in British Columbia that have come as a result of FOI requests, including the Triple Delete scandal in 2015. CHEK News recently published a story about COVID-19 infections at K-12 schools that came as a result of an FOI.

“I’ve been able to get some great information out of government about how it handles foster children in care or has mishandled foster children, how it has spent way too much money on advertising and how it has mishandled procurement,” says Mackin, who has uncovered information how many people have been killed on the SkyTrain tracks since 1985 to Dr. Bonnie Henry’s own contract with the B.C. government as a result of FOI requests.

British Columbia’s Freedom of Information and Protection of Privacy Act (FIPPA) came into effect in 1993, creating a formalized system that allowed individuals to access either their own information or information held by the provincial government and other public bodies.

Prior to 1993, the way to obtain information —  especially the kind not normally disclosed in government press releases or by communication teams — was simply to ask the provincial government or the public body for it. While that sounds simple, the provincial government was under no legislated obligation to provide any of the information requested and could arbitrarily decide what was released and what wasn’t.

“There was a federal law before there was provincial law and it was really patchworked as well because there were municipalities that were doing their own thing,” says Mackin. “The City of Vancouver had a [FOI] law itself back in the early 1980s if I remember correctly, so it really was hit and miss.”

Who can submit an FOI?

Anyone can submit an FOI request regardless of age or location.

That said, FOI’s are typically filed by journalists, media organizations (including CHEK News), political parties, activists, and those in the legal profession.

“Citizens have a right to know what their government is doing,” says Mackin. “The citizens ultimately own the government, the citizens ultimately employ the bureaucrats, the politicians, the systems that put the politicians into their jobs. So we’re the employers, we own the enterprise, as you might say.”

What can I ask for in an FOI request?

Although the Freedom of Information and Protection of Privacy Act requires public bodies to routinely release certain public information, there is still a tremendous amount that is not made routinely available to the public.

Information that may require an FOI can include contracts and agreements, invoices, credit card statements or expense reports, phone bills, purchase orders, legal opinions, arbitration decisions. It can also include data and electronic communications regarding a specific topic. If you are seeking your own personal information, you are generally required to submit an FOI.

The City of Nanaimo has provided a sortable list of what information is routinely available and what information requires an FOI, which serves as a good guideline and can be viewed here.

It’s also worth noting that the B.C. government routinely releases a trove of information — far more than most other public bodies — such as travel expense receipts for elected officials, contracts over $10,000, directly awarded contracts, to name a few.

How do I write my FOI request? 

When it comes to structuring your request, it is strongly recommended that the request be as specific as possible. This can be done by providing a date range, time period, or including the names of the individuals associated with the information you are requesting.

To illustrate what an FOI request looks like, below are two examples of an actual FOI request CHEK News submitted to Island Health in early October.

1) The total number of schools on Vancouver Island that have reported/experienced a COVID-19 exposure since September 6, 2021. 

2) The total number of students/staff infected with COVID-19 at a school setting on Vancouver Island since September 6, 2021

Below is a fictional example of an FOI request seeking communications between certain individuals at a public body.

All correspondence including e-mail and text message communication between PERSON X and PERSON Y that mentions COMPANY B between July 1, and July 8.

Mackin recommends people do some research ahead of time, especially now that there is a $10 fee applied to all FOI requests submitted to the provincial government.

“The FOI law isn’t just for media, although is a great tool for media to do our jobs to get the information about government to build stories or to confirm information to get reports on all sorts of things, because the government doesn’t tell us everything that it does,” he says. “So, it’s wise now with the $10 fee, for the anyone in the public, anyone in the media to focus more and do a little bit more research to word [their request] properly.”

If you’re still not sure how to structure your request, the B.C. government provides a list of all FOI requests they have responded to that can be used as examples.

You can view the list here.

How do I submit an FOI request?

The process for filing an FOI request varies greatly depending on the public body or agency — this is particularly true when it comes to municipal governments.

To simplify this often time-consuming process, we’ve compiled a list of every single municipality and regional district on Vancouver Island — and a few beyond our shorelines as well as a few public agencies — outlining their process exactly how you can file an FOI.

You can view the list here.

What happens after submitting your FOI request?

Once you’ve filed an FOI request, the public body is required to provide a response within 30 business days from the date your request was submitted, not from the time they first see it. However, a public body can request a deadline extension if they believe they are unlikely to meet the deadline.

Most public bodies will respond with confirmation that they have received your FOI request, usually by e-mailing you a formal acknowledgment letter. Others do not, however. Therefore, it’s best to ask for an acknowledgment letter with your FOI request.

If you do not receive a response within 30 days, you can file a complaint with OIPC and request a review. It is a good idea to follow up with the public body first, before reaching out to OIPC.

Will the person or persons mentioned in my FOI know I’ve submitted an FOI about them?

Technically, no.

The only person who is supposed to know who filed an FOI request is the individual designated by the public body — called an FOI head — to handle the requests.

“The individual should not know. The only person who generally knows who the applicant is, is the person in charge. Who the person is or what their motives are for asking are not something that normally comes into play at all in the way an FOI request is processed,” explains McEvoy.

Once a request has been received by the public body, McEvoy says the request should be handled in an impartial manner by the person designated as the FOI head.

“Every public body has to have what’s called a [FOI] head that’s responsible for access to information processes within that public body,” says McEvoy. “Sometimes, it is the most senior person in the organization. But most often in larger organizations, it is delegated to somebody else where oftentimes it’s a significant part of their job to ensure that access to information requests are dealt with properly.”

Fee statements

You may receive what is known as a fee statement public body, essentially a letter stating that you will likely be charged for the information requested.

Under the Freedom of Information and Protection of Privacy Act, public bodies in British Columbia are allowed to charge applicants service and processing fees for non-personal FOI requests.

Fees can be applied for locating, retrieving, and producing the information, preparing the information or record for disclosure, shipping and handling, and providing a copy of the record.

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These fees can be hundreds or even thousands of dollars, depending on the size and scope of your FOI. For an idea of how much fees can be, BC Ferries posts all FOI requests received and responded to on their website, along with the fees that can be viewed here.

Luckily, fees are not applied for the first three hours the public body spends locating and retrieving the information or for time spent removing information from a record. However, public bodies must provide a written estimate — a fee statement — before proceeding with an FOI request. They are also allowed to require a deposit before moving forward with the request.

“Public bodies can charge a fee if it is going to take them more than three hours to do the searching and bring together all the records. In that case, they will give the applicant an estimate of what they think it will cost,” says McEvoy. “That estimate will have to be based on a scheduled set out on an hourly basis. They can charge whatever they want.”

However, fees may be waived by the public body if the applicant indicates that they cannot afford the payment or for “any other reason it is fair to excuse payment, or the record relates to a matter of public interest, including the environment or public health or safety,” according to the privacy act.

As B.C.’s privacy commissioner, McEvoy also has the authority to waive any fees.

“Those fees that sometimes are charged by public bodies can be waived by the public body. In fact, it can be waived by me if I think it’s in the public interest. So there have been a number of occasions where journalists on behalf of citizens or citizens looking at a very important public issue,” he says.

You received a response, but most of the information was redacted or denied

You’ve waited weeks, sometimes months or even years, for your FOI request to come through, only to open it up and find that everything you asked for has been redacted. Or even worse, your entire request has been denied.

“In most cases, when people go to their public bodies and ask for information, they get it and that’s the end of the story,” explains McEvoy. “But sometimes, the individual will get back a response that doesn’t satisfy them. It may be that they think the public body didn’t do a good enough search for the record.”

Public bodies are allowed to redact information within their response or deny your request entirely. When this happens, the public body will cite one or more subsections of FIPPA as reasons for rejection. Reasons for redaction or outright denial can include harm to financial or economic interests of a public body, legal advice, disclosure harmful to interests of an Indigenous people, and harm to business interests of a third party.

“There are exceptions under the legislation to certain kinds of disclosure, where they’re invasions of privacy, that kind of information can be withheld from a record,” says McEvoy.

Fortunately, there are options available if you feel that the public body’s response wasn’t good enough or that the reasons they provided aren’t valid.

“A member of the public is entitled to come to us as a matter of right, and to appeal the decision of the public body to our office,” says McEvoy.

However, OIPC first recommends that you complain directly to the public body, and clearly outline the reasons you think the information should be released.

Should that not work, there are two options available. You can submit a formal complaint — sometimes known as an access complaint — with OIPC and you can also request OIPC conduct a review of the public body’s response to your request.

Access complaints typically deal with the public body’s actions related to your request while reviews specifically focus on the public body’s response to your FOI request.

“We get hundreds of these kinds of requests every year and in the vast majority of the cases, we resolve those issues, usually fairly speedily between the public body and the individual,” says McEvoy.

Regardless of whether you’re formally complaining or requesting a review by OIPC, you must do so within 30 days from the date the public body responded to your request.

In situations where the public body hasn’t responded to your request after 30 business days, McEvoy recommends reaching out to them and if there is still no communication, contacting OIPC.

“In that case, you would absolutely want to check in with the public body to see what’s happened there. If they just don’t answer, you can absolutely come to our office,” he says.

There are circumstances where an appeal — either an access complaint or a request for review — can go to adjudication.

“It’s often a bit more of a formal procedure, but there are natural justice issues where everybody must be heard and so on,” says McEvoy. “That’s a very small minority of cases but an important part of what we do and those decisions that we make are final and binding orders subject only to reviews by Supreme Court of British Columbia.”

Earlier this year, OIPC ordered the City of Langford to provide an unnamed journalist with a copy of its proposal for Amazon’s second headquarters in North America.

McEvoy also says in situations where the public body refuses to provide to respond to the request or provide the information within the request without rationale, OIPC can order them to do so.

“We have done this on a number of occasions, our office will make an order against the public body ordering them to produce the record, or to at least to respond to the request.”

Instructions on how to file a complaint with OIPC can be found here while information on how to request a review can be found here. Individuals are also encouraged to contact OIPC at (250) 387-5629, should they have any questions or concerns regarding the complaint or review process.

npescod@cheknews.ca

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