Practice Note – Inquiry Procedures

This Practice Note relates to inquiries under the Freedom of Information and Protection of Privacy Act (FOIP Act), Access to Information Act (ATIA), and Protection of Privacy Act (POPA), which apply to public bodies. It also relates to inquiries under the Health Information Act (HIA), which applies to custodians, and the Personal Information Protection Act (PIPA), which applies to organizations

In this document, “Commissioner” means the Commissioner or the Commissioner’s delegated Adjudicator. Public bodies, custodians and organizations are referred to as “respondents” for the remainder of this publication.

The inquiry process is a formal process that ends with a final written decision. Most inquiries are conducted in writing. The applicant or complainant who requested the review, and the respondent will be given an opportunity to provide a submission.

The Commissioner may identify and invite other individuals or organizations to participate in the inquiry if the Commissioner determines that they are affected by the inquiry.

The inquiry process begins with a Notice of Inquiry sent to the parties. This Notice sets out the issues for the inquiry and deadlines for parties to make submissions.

This Practice Note sets out the requirements for providing submissions, including timelines and page limits. Submissions not adhering to the requirements set out in this Practice Note may not be accepted.

Preparing submissions

For inquiries relating to access requests under the FOIP Act, ATIA, PIPA and HIA, the respondent usually has the burden of proof, to show that the claimed exception applies. Where an applicant is requesting personal information about other individuals (third parties) under the FOIP Act or ATIA, the applicant has the burden of proof to show that the information ought to be provided to the applicant. Where third party organizations are objecting to the disclosure of their confidential business information under the FOIP Act or ATIA, the organization has the burden of proof. For additional guidance on preparing submissions for an inquiry into the application of exceptions to access, see Practice Note – Directions to Respondents When Making Submissions

For inquiries relating to privacy complaintsprivacy complaints includes complaints about the accuracy of an individual’s personal information and requests for reviews of decisions regarding a request to correct personal information under the FOIP Act, HIA, PIPA and POPA, the complainant has to provide some reason for the Commissioner to find that the event complained about occurred as alleged. The respondent must then show that it had authority to take the action it did.

The purpose of a submission is for the party to make their case as it relates to the issues in the inquiry. For example, in an inquiry relating to an access request, an applicant might explain why they believe an exception applied to information in a record does not apply. The Respondent must explain why the exception does apply. In an inquiry relating to a complaint about the collection, use, or disclosure of personal information, the complainant should show what collection, use, or disclosure of their personal information occurred, and explain why they believe the collection, use, or disclosure was not permitted. The Respondent explains how the collection, use or disclosure was authorized.

Unless otherwise specified in the Notice of Inquiry, where an applicant or complainant does not bear the burden of proof, the applicant or complainant can rely on their request for review an any attachments instead of providing a submission to the inquiry. The applicant or complainant must inform the Commissioner in writing that they are relying on these documents, following the instructions set out in the Notice of Inquiry.

Parties should ensure they address each issue set out in the Notice of Inquiry. Parties are also encouraged to review relevant Orders, case law, and OIPC Practice Notes. Orders and other OIPC decisions are available here and on CanLII.org. The parties may also review other Practice Notes that address specific issues, available on the OIPC website.

Information that may be useful for parties to provide to the Commissioner for an inquiry includes:

• Excerpts from relevant legislation or regulations that apply to the operations of the public body, custodian or organization, and that relate to the issues in the inquiry;
• Excerpts from policy manuals that set out relevant practices or policies of the public body, custodian or organization;
• Excerpts and pinpoint citations of relevant orders and relevant court decisions; and
• Excerpts and pinpoint citations of decisions made by Information and Privacy Commissioners in other jurisdictions that may be of assistance to the Commissioner when considering the issues.

It is important to identify how the above information relates to the issues set out for the inquiry.

Do not provide entire copies of statutes, regulations, court decisions or Orders.

Upon receipt of the parties’ submissions, the Commissioner may request additional information or arguments from one or more parties. Deadlines for responses will be provided.

Parties should be aware that submissions previously provided for the settlement phase are generally not carried forward to the inquiry. All materials provided to the Commissioner for the inquiry will be attached to the Notice of Inquiry; parties are responsible for ensuring that any additional information they want the Commissioner to consider in the inquiry is included in their inquiry submission.

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Page limits for submissions

The maximum length for a submission is 20 pages. The Commissioner may decline to consider lengthy submissions. This limit does not include supporting evidence such as affidavits or excerpts of authorities.

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Submissions are exchanged

Parties must provide a copy of their submissions and related documents to each of the other parties listed in the Notice of Inquiry. Submissions and other documents that are not exchanged with the other parties will not be provided to the adjudicator for the inquiry.

The exception is where a party has sought and received permission to provide a portion of their submission or other document in camera. Parties wanting to request that part of their submission be accepted in camera must make the request in accordance with the process set out in the Request to Provide an In Camera Submission form. Generally, the party must provide a proposed redacted version of the submission and provide detailed reasons for not exchanging the identified portions. Submissions will be accepted in camera only in specific circumstances set out in form.

Requests to provide part of a submission in camera may be rejected if they do not follow the process set out in the form.

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Timelines for submissions

Each Act sets out specific time limits for completing inquiries under those Acts. While the OIPC considers these time limits to be directory – see Peters v East 3rd Street North Vancouver Limited Partnership, 2023 BCSC 879 (CanLII), at paragraph 27, or  Rahman v. Alberta College and Association of Respiratory Therapy, 2001 ABQB 222 (CanLII) – the inquiry process has been designed to meet those timelines in all possible cases.

Parties will be expected to provide their submissions and other requested information by the deadline provided in the Notice of Inquiry or correspondence from the adjudicator. A party may request a short time extension to provide a submission or response where necessary. Such requests must

• be made before the party’s deadline;
• be made in writing;
• include the additional time requested;
• include reasons for the request;
• be provided to the other parties listed in the Notice of Inquiry.

Decisions to grant extensions are at the discretion of the Commissioner and may be constrained by the time limits for completing the inquiry.

Parties are encouraged to submit their extension requests using the Request to Extend the Submission Deadline form, available on the OIPC website.

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Decision following completion of inquiry

Once the above inquiry process is complete, the Commissioner will review the submissions and other materials provided for the inquiry, and make a determination on the issues. The Commissioner’s decision will be provided to the parties in writing.

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Address for Service/Contact information

Written inquiries are conducted by email or other electronic means as determined by the Commissioner. Parties are required to provide an email address for service to be used for the exchange of written inquiry submissions and other correspondence.

Parties unable to participate electronically may request permission to participate by mail. A formal request must be made to the adjudication team to participate by mail.

All parties must also provide written notice, as outlined above, of any changes to their address for service. The form for change of contact or address for service is available on this page.

If the applicant or complainant who asked for the inquiry fails to provide a current address for service or fails to give notice of changes to the address for service, the Commissioner may discontinue the inquiry.

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Correspondence with the OIPC

All inquiry materials must be provided in writing. During an inquiry, parties are asked to send all correspondence to the Adjudication Case Manager or Registrar of Expedited Inquiries, as directed. Do not contact or send correspondence directly to the Commissioner or adjudicator.

Parties with questions about the inquiry process can call or email the Adjudication Case Manager or Registrar of Expedited Inquiries; contact information will be provided in the correspondence sent to parties.

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Expedited Inquiries

In some circumstances, a request for a review may be streamlined to an expedited inquiry process. In general, the following requests for review may proceed to an expedited inquiry:

• a public body’s failure to respond to an access request under the ATIA;
• a public body’s decision to extend its time to respond;
• a public body’s decision to disregard a request; or
• a public body’s decision that a request was abandoned.

An organization’s or custodian’s failure to respond to an access request under PIPA or the HIA may be streamlined directly to an expedited inquiry process.

The expedited inquiry process generally involves condensing the usual inquiry process, including shortening submission schedules, and a strict adherence to timelines. Where available, respondents are encouraged to provide their submission using the relevant form, available on the OIPC website at https://oipc.ab.ca/forms/.

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Glossary of Terms

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