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May a Government Institution Unilaterally Convert an Access to Information Act Request into a Privacy Act Request?

Background

A lawyer made requests, on behalf of two clients, to the Canada Revenue Agency (CRA) under the Access to Information Act. The requests were for records relating to the clients’ income tax affairs. The requests were made on official access to information (ATI) request forms, accompanied by the required application fees. Approximately one week after receiving the requests, CRA wrote to the lawyer to say that the requests did not comply with section 6 of the Act. Section 6 requires that access requests "provide sufficient detail to enable an experienced employee of the institution with a reasonable effort to identify the record."

The lawyer did not understand how he could be more specific because he wanted all records held by CRA concerning their income tax affairs. He made a complaint to the Information Commissioner.

CRA decided to proceed to gather the responsive records, but also decided, unilaterally, to convert the ATI requests into Privacy Act requests.

Legal Issues

Must an access requester formulate requests with specifics as to what branches of the institution may hold the records, or what functional areas are relevant to the subject of the request? That was one issue raised by this complaint. The second was whether a government institution may, unilaterally, convert an ATI request into a Privacy Act request.

The Information Commissioner concluded, on the first issue, that section 6 of the Act does not require a sophisticated knowledge, on the part of the requesters, concerning the organization, business processes, records management systems, or functional divisions of the government institution to which a request is made. Rather, it assumes that experienced officials of the government institution will do their part to comply with requests, even if the requests are for all records on a particular topic.

The Information Commissioner acknowledged that it is always good practice for government institutions to clarify requests, and for ATIP officials to keep in close communication with requesters so that access requests are well-formulated and well-understood. The Information Commissioner emphasized, however, that the Act gives no authority to government institutions to decide that access requests which are broadly worded are improper.

With respect to the second issue, the Information Commissioner concluded that requesters have the right to choose whether to make requests for information under either the Access to Information Act or the Privacy Act. Some requesters will choose to request information about themselves under the Access to Information Act because a greater array of records is available under that Act (whereas, under the Privacy Act, one may only receive access to one’s own personal information). On the other hand, there are fees for making a request and obtaining copies under the Access to Information Act, while there are no fees under the Privacy Act. It is up to the requester, however, not the receiving institution, to decide which Act should govern the processing of the request.

CRA agreed to process the requests under the Access to Information Act, without further clarification, and responses were provided.

Lessons Learned

Government institutions walk a fine line when trying to be helpful to access requesters. For example, they may believe that fees could be eliminated if an access request is converted into a Privacy Act request. Even if that is the prudent course, it should not be taken without the requester’s consent. And, too, institutions may feel that the time and fees associated with a broadly worded access request could be reduced if the request is more narrowly focused. Even if they are correct, it is rarely an acceptable answer to decide that the request does not comply with section 6. The prudent course is to develop a good communication with the requester to encourage a reformulation of the request; if the requester wishes to proceed with a broadly-worded request, that is his or her right. 

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