Canada: Why is FOI so Hard?

Last Updated: August 11 2010
Article by Dianne Saxe

Freedom of information (FOI) laws are important, in that they are supposed to provide citizens with access to information that is under the control of government institutions. However, the FOI request process is cumbersome and confusing, and many requests are rejected with little or no explanation. In Canada, the Access to Information Act applies to federal government institutions, and each province has its own FOI statute(s), all of which operate in a similar manner. In Ontario, for example, there are separate laws for information held by provincial institutions (e.g., ministries, agencies, boards, commissions and universities) and municipal ones (e.g., municipalities, police services boards, school boards, conservation authorities, health boards). We will use Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) to highlight concerns with the FOI process, in particular in light of a recent Supreme Court of Canada (SCC) decision relevant to the issue.

The FOI request process

Making an FOI request sounds easy: a written request (made on the prescribed government form) along with a fee must be sent to the government institution that likely has the records sought. It is acceptable to attach a letter to the FOI request form that sets out the request in as much detail as possible, to avoid misinterpretation and omission of relevant documents. It is wise to file FOI requests with all government institutions that may have relevant information (e.g., environmental material may be held by the Ministry of the Environment (MOE), city, regional municipality, certain boards). Of note, information may be in various forms, and includes documents, computer files, photographs, films, videotapes and sound recordings.

Generally, the institution must respond to the FOI request within 30 days, but an extension may apply where the request is for a large number of records or consultations with external persons are required to comply with the request. There are also other ways in which the process can be delayed. For example, some requests are subject to third party notification, and party may object to information being disclosed. As well, in some cases, the institution requires further applications; recently, we made an FOI request for environmental records relating to a defined geographical area, and the MOE responded that we must submit a separate FOI request form plus fee for each of the many street addresses within the area of interest.

If the request is refused, the requester may appeal within 30 days to the Information and Privacy Commissioner, who is appointed by the legislature but is independent of the government. This may be a wise option, as the government institution may simply reject a request by reciting the clause number of the FIPPA exemption, without providing reasons. Details concerning the basis for the rejection will be clarified on appeal.

If the request is accepted, the requester will be provided with an estimate of the fee to cover costs associated with locating, retrieving and copying the records. This can be high, for example if a lot of time must be spent to review the documents or if hundreds of pages are involved. The requester may opt not to proceed, to narrow the scope of the search, or to request a review of the fee amount.

In 2009, of the 10,240 general information requests received by provincial government organizations, the Ministry of the Environment received the most of any provincial institution, 4944 requests. (see attached Commissioner's report at 10-11)


Exemptions under FIPPA limit or prevent disclosure of certain information. Where only part of a document is exempted from disclosure, the remainder of the record must be disclosed. Exemptions include Cabinet records; advice to governments (e.g., by public servants, consultants or others); law enforcement records; defence records; third party information (e.g., trade secret, scientific, technical or labour relations information); information relating to Ontario's economic and other interests; records that are subject to solicitor-client privilege; records that, if disclosed, could threaten an individual's safety or health; personal information; records that put species at risk; and information that is already or soon to become publicly available.

FIPPA contains an override provision that mandates disclosure of records if there is a compelling public interest to do so. However, this provision doe not apply to all exemption categories, for example, to records subject to solicitor-client privilege and law enforcement privilege.

A recent SCC decision in Criminal Lawyers' Assn. v. Ontario (Ministry of Public Safety & Security) is important as it recognized a limited Charter right to access government information. A lower court judge stayed murder charges relating to a 1983 mob killing because of abusive conduct by the police and Crown attorney. The Ontario Provincial Police (OPP) investigated the conduct of the officials and exonerated them, without explaining why the misconduct found by the judge did not attract criminal charges. The Criminal Lawyers' Association (CLA) requested disclosure of the OPP investigation report under FIPPA. The Minister refused, claiming exemptions that included solicitor-client and law enforcement privilege, among others, although he failed to explain how these exemptions applied. The Assistant Information and Privacy Commissioner reviewed and upheld the Minister's decision with respect to these two claimed exemptions, which were not subject to the FIPPA override.

The CLA argued that freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms would be breached unless the documents were released under FIPPA's public interest override provision. The Divisional Court upheld the Minister's decision and found that the FIPPA exemption scheme did not violate freedom of expression; the Court of Appeal disagreed and held that the scheme violated the Charter.

The SCC overturned the Court of Appeal decision, ruling that the Charter guarantee of freedom of expression does not extend to access to all information held by the government. Access to such documents is constitutionally protected only where it is necessary to permit meaningful discussion on a matter of public importance, does not encroach on protected privileges (e.g., solicitor-client or law enforcement privilege) and is compatible with the function of the institution (e.g., Ministry) concerned. Unfortunately, the Court did not clarify what "meaningful discussion" means.

The SCC upheld the Commissioner's decision on the solicitor-client privilege claim. However, it noted that the absence of reasons and failure by the Minister to order disclosure of any part of the "voluminous documents" sought by the CLA raised concerns that should have been investigated by the Commissioner; accordingly, it sent the matter back to the Commissioner for reconsideration of the decision relating to the law enforcement exemption.

The SCC decision should serve as a warning to government officials that merely refusing an FOI request without providing the rationale behind the refusal is no longer appropriate. Nor is withholding an entire document where only portions are exempted from disclosure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Dianne Saxe
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions