In this document, “Commissioner” means the Commissioner or the Commissioner’s delegated Adjudicator or authorized Senior Information and Privacy Manager.
When a public body, custodian or organization (respondent) withholds entire pages of records or severs information from records in responding to an applicant’s access request, the applicant can ask the Commissioner to review those decisions. The respondent must provide the records at issue, including the severed information, for the Commissioner to review. This Practice Note sets out instructions for providing records at issue for both the settlement and inquiry phases. As explained below, there may be different requirements for different phases of the review.
“Records at issue” are the entire records in response to an access request. “Information at issue” is the information severed from pages that were provided to the applicant. The “records at issue” are not exchanged with other parties.
The requirement to provide records or information at issue does not apply to records or information over which solicitor-client privilege, litigation privilege, or informer privilege is being claimed, or information withheld under sections 4(1)(a), (s), (t), (w), 27, 32(1)(a) or 32(2) of the ATIA. Respondents will be required to provide information supporting those claims, and affidavits may be requested in an inquiry (please see Practice Note: Providing Affidavits and Other Evidence)
The respondent must also provide an index of records for the review. An “index of records” helps to organize the records at issue. The requirements of an index of records provided for the settlement phase of the review are different from the requirements of an index of records provided for the inquiry phase. The requirements for each are discussed below.
At the inquiry stage, the respondent will be asked to provide a new copy of the records at issue and a new index of records. The new copies will reflect any new decisions made by the public body to disclose additional information. Where no new decisions have been made, the new copy of the records will be identical to those previously provided.
Where the records at inquiry are different from those previously provided for the review, the Commissioner may also rely on both the new records and those previously provided to decide the issues in the inquiry.
Records at Issue
When the Commissioner requests records at issue for a review, respondents must:
Document all redacting decisions made regarding the records.
If the respondent decides to release more information following the settlement phase, the records and information at issue will consist only of records and information still being withheld.
Provide a copy of the records in electronic format.
The Commissioner may specify the method and format respondents must use to provide the records.
Provide copies of the records at issue, not originals.
A respondent must keep its own set of records at issue so that it can make arguments or respond to questions.
Indicate the information that has been withheld or severed, and cite under what provision.
With respect to severed information, the preferred format is one copy of an unredacted version that identifies the severing decisions (e.g. by highlighting or outlining). Where this is not practicable, the Commissioner may accept both a severed and unredacted version of the records.
The section numbers of the applicable legislation (i.e. exceptions to disclosure) that are being relied on to withhold records or information are to be noted on the page adjacent to each redaction. Where multiple exceptions are applied to information in a page, it must be clear which exception applies to what information. For example, in some cases one exception is applied to only to one sentence in a paragraph, and another exception is applied to the whole paragraph. The records must clearly show which exception was applied to only the sentence and which sentence it was applied to, as well as which exception was applied to the whole paragraph.
Blank pages of records withheld in their entirety need not be provided where there are large numbers of such pages, or where all the records are withheld, but it must be made clear in an index
of records stating how many such records there are, and which section of the applicable legislation is being applied to each page.
If a respondent is proposing to disclose information but a third party objects to its disclosure, then this information should be labeled in the records as “third party objection”.
Document only those redaction decisions that have been or are being communicated in a response to an applicant.
If a respondent has made a decision to apply a particular provision (i.e. exception to disclosure) and has communicated this decision to the applicant, then the notation in the records as to which exception was applied should refer to only that provision.
The records should not refer to, or indicate, any severing decisions that are not current or that have not been communicated to the applicant.
Number the records, with the numbering also on records provided to third parties and the applicant.
The page numbers of the records provided to the Commissioner must be consistent with the page numbers of the records provided to the applicant and third parties. If severed or blank pages provided to a third party or applicant have different numbers than those provided to the Commissioner, it becomes difficult, and in some cases impossible, to identify the records to which the parties are referring in their submission.
If there are multiple packages of records, the page numbering must be consecutive from the first package to the last, unless this is not practicable. For example, with two binders of different documents, each one may already have pages numbered in sequence. In that case, the binders may be described as “Record A” and “Record B” and the pages do not need to be renumbered; identification such as “Record A, page 2” is sufficient. A loose collection of diverse records, however, should always be numbered in sequence.
Be legible.
The records should be reviewed to make sure that the copies can be read, to the fullest extent possible.
The deadline for providing the records to the Commissioner for the settlement phase is set out in the acknowledgement letter issued when a review is opened.
Additional requirements for records provided for an inquiry
Records provided for an inquiry must not contain notations or explanations other than to note the provision applied.
Respondents are to provide reasons for applying a provision in their submission to the inquiry and not in the records at issue (see Practice Note: Inquiry Procedures). Additional notations or explanations appearing in the records at issue are not properly before the Commissioner in an inquiry and will not be reviewed or relied on in the inquiry.
This limitation does not apply to the records provided for the settlement phase of the review.
Index of Records
When there are more than three (3) pages of records at issue, the respondent must provide an index of records to the Commissioner for the review. The index of records is to be provided in a table format. The index of records required for the review at the settlement phase must include the following:
- All of the pages numbered in sequence, unless this is not practical (see above).
- For withheld or severed pages, a column identifying the section number(s) of the applicable legislation under which the information has been withheld.
Indexes of records provided at the settlement phase may also include a column containing a description of the nature of the records or information being withheld but is not required.
A deadline for providing the index of records for the settlement phase will be provided to the respondent in writing.
Indexes of records provided for an inquiry must also include a column containing a description of the nature of the records or information being withheld (e.g. “email”, “letter”, “briefing note”, “report”, etc.). It is helpful to include titles and dates of documents if that information is not at issue.
In an inquiry, a copy of the index of records must be provided to the applicant and/or third party with the respondent’s submission (see Practice Note: Inquiry Procedures)
The index of records is to be sent by the respondent to the Commissioner and all other parties named on the Notice of Inquiry with the respondent’s submission. It should be labelled “Index of Records (Provided to the Parties)”.
Because the index of records must be provided to the other parties in an inquiry, it should not itself reveal any information that the party preparing it seeks to withhold from the other parties.
Index of Records Example
The index of records should account for each of the withheld or redacted pages, and every section of the applicable legislation applied. As a result, the index of records should be comprised of two tables:
- Table 1 according to page numbers, with descriptions of the records or information if the index is provided for an inquiry.
- Table 2 according to the sections of the applicable legislation in which the descriptions need not be
The two tables ensure the person conducting the review can quickly identify and locate the information and exceptions at issue in the records.
Table 1 Example
| Page Number | Description | Section(s) of the Act |
|---|---|---|
| 1-17 | Cabinet minutes | 22(1) |
| 18-19 | Minister’s report to Cabinet | 22(1), 16(1)(a)(ii),(b), (c)(i), 25(1)(c) |
| 20-22 | Third party report to Treasurer | 22(1), 16(1)(a)(ii), (b), (c)(i) |
| 23 | Public Body X’s letter to Minister of Public Body Y re: development in City Y | 21(1)(a)(ii), 25(1)(c) |
| 24-30 | Memo re: Policy Options for Public Body Y | Disclosed |
| Record A | Treasury’s financial analysis for Cabinet | 22(1) |
| Record B | Third Party’s report to Public Body X | 16(1)(a)(ii),(b),(c)(i) |
Table 2 Example
| Section(s) of the Act | Page Number(s) |
|---|---|
| Section 16(1)(a)(ii),(b), (c)(i) | 18-19, 20-22; Record B |
| Section 21(1)(a)(ii) | 23 |
| Section 22(1) | 1-17, 18-22; Record A: 1-5 |
| Section 25(1)(c) | 18-19, 23 |
Preparing Records at Issue Checklist
| | Are the records numbered? |
| | Is the numbering consistent, such that the numbers on the records are the same as those on records provided previously to the applicant or a third party? |
| | Are the records legible? If the records are in electronic form, can they be opened? |
| | Are all redaction decisions current and clearly indicated on the records? |
| | Has the requestor been told about all the redaction decisions documented on the records? |
| | Has a set of records been kept for the respondent’s use in the inquiry? |
| | If the records are for an inquiry, have all extraneous comments been removed from the records? |
| | Should an index of records be provided? If so, has an index of records been prepared? |
Glossary of Terms
| Term | Definition |
|---|---|
| Adjudication | The team that manages the inquiry phase. |
| Adjudicator | The person that the Commissioner has delegated to be the decision-maker in the inquiry. |
| Affected parties | Individuals or other organizations that could be affected by the decision made in the inquiry. May also be referred to as third parties. |
| Applicant | The individual who formally requested access to information or requested correction of their personal or health information under the ATIA, FOIP Act, HIA or PIPA. |
| Arguments | The reasons why a party believes the evidence shows certain facts to be true, and why the Commissioner should interpret the law a certain way. |
| Case Resolution | The team that conducts the settlement phase of a review. |
| Complainant | The individual who made a formal complaint that personal information was collected, used or disclosed in contravention of the FOIP Act, HIA or PIPA. |
| Custodian | The health service provider, whether an individual or an organization, from which the information was requested or against which the complaint was made (also called “respondent”). |
| Evidence | Information/material that establishes the facts on which a party is relying. |
| In camera | A portion of a submission provided only to the Commissioner in an inquiry. |
| Inquiry | A formal adjudicative process, usually conducted in writing. |
| Interveners | Individuals or organizations whose opinions or specialized knowledge can provide a broader understanding of the issues at inquiry. |
| Mediation/investigation | A process authorized by the Commissioner to explore opportunities to settle issues with the parties. May also be referred to as the settlement phase. |
| Notice of Inquiry | Identifies the parties involved in the inquiry and their contact information, the issues that will be addressed, and a schedule for submissions. |
| Organization | The business, corporation, union or partnership from which the information was requested or against which the complaint was made (also called “respondent”). |
| Parties | The respondent (public body, custodian or organization), applicant/complainant, or other affected parties who are part of the inquiry. |
| Public body | The government department or other public entity from which the information was requested or against which the complaint was made (also called “respondent”). |
| Respondent | The public body, custodian or organization that has duties under the legislation. |
| Senior Information and Privacy Manager | The person that the Commissioner has authorized to investigate and try to settle the confirmed issues at the Case Resolution phase. May also be referred to as an investigator. |
| Settlement | A process authorized by the Commissioner to explore opportunities to settle issues with the parties. May also be referred to as a mediation or investigation. |
| Submissions | Informs the Commissioner and the other parties about what a party thinks are the central issues in a case, and provides evidence and makes arguments about how those issues should be decided. |
| Third Parties | Parties, other than the respondent or applicant/complainant, who are part of the inquiry. For example, organizations and individuals whose information is the subject of an applicant’s access request. May also be referred to as affected parties. |
June 4, 2025
Disclaimer |