Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 3, Access to Records. Updated 5 May 2023. 56 Subsection 7(2)(e) Response required 7(2) The head shall give written notice to the applicant within 30 days after the application is made: … (e) stating that access is refused for the reason that the record does not exist; Subsection 7(2)(e) of FOIP provides that where a government institution determines that the record requested does not exist, it should indicate that in its response to the applicant. A statement by a government institution that a record does not exist does not imply that the record in question does not exist at all. It would not be possible for a government institution to make such a sweeping statement about the general existence of a record. The term “exist” in subsection 7(2)(e) of FOIP is a function of being possessed or controlled by the government institution to which the access request is being made.96 There are two circumstances where a response that records do not exist can occur: 1. Search did not produce records There are times when a search for responsive records turns up nothing. When responding to the applicant, government institutions should include the steps taken to find records.97 Where a record has been destroyed, information should be provided on the date of destruction and the authority for carrying it out.98 Applicants have a right to request a review of search efforts conducted by the government institution pursuant to subsection 49(1)(a) of FOIP. In such situations, a government institution should be prepared to provide documentation of the search that was conducted to locate the responsive records. For more on search efforts and reviews involving search efforts, see Search for Records and IPC Review of Search Efforts, earlier in this Chapter. A reasonable search is one in which an employee, experienced in the subject matter, expends a reasonable effort to locate records which are reasonably related to the request. A 96 SK OIPC Review Report F-2008-002 at [17] to [18]. 97 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 3 at p. 90. 98 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 3 at p. 90.
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