The requester (now the appellant) appealed the Ministry’s decision, stating:

I wish to appeal the fees for MNR Reference Number: A-2001-152.  I can only afford to pay for items 3-6, as these items are very straightforward.  They are only minutes of meetings.  I have asked for these before (older records) and they were sent to me without any charge.  Items 1 and 2, I must appeal.

During the mediation stage of the appeal, the appellant indicated that she also wished to pursue a fee waiver on the basis of financial hardship, as well as benefit to public health and safety, and therefore submitted her written request for a fee waiver to the Ministry.

Upon further mediation of this appeal, the appellant agreed to remove Parts 2, 3 and 4 from the scope of this request.  Accordingly, the appellant agreed to narrow her request to the following items:

1.      all e-mails, briefing notes, notes, minutes of meetings, including minutes of the writing team meetings – from all levels of governments, all interested stakeholders including but not limited to the timber industry and non-governmental organizations regarding the Forest Management Guide for Natural Disturbance Pattern Emulation from July 20, 2001 to December 15, 2001.  Please do not include the actual document Forest Management Guide for Natural Disturbance Pattern Emulation. [appellant’s emphasis];

5. summaries of the Woodland Caribou Recovery Team meetings from January 2001 to November 2001; and                      

6.   the discussion paper, Framework Policy For Room to Grow (Sharing Principle).

In response to the appellant’s request for a fee waiver, the Ministry issued a further decision letter dated July 29, 2002, which indicated, in part:

After careful review of the records you included with your letter, I have decided that the information provided is insufficient to support a claim of financial hardship.  While the records provide details about income, there is no information regarding expenses.

In the past you have requested information and correspondence with the Ministry on behalf of [a named organization].  Are you acting on behalf of [the named organization] in this instance?  This may have an impact in deciding whether a fee waiver is warranted under a claim of financial hardship as the finances of the individual or organization that will pay the fee are at issue.

Should you wish to provide additional information in support of your request for a fee waiver, the Ministry will reconsider this matter.  However, with the information that has been provided to date, it is the Ministry’s position that a fee waiver is not warranted in this instance.

In response to the narrowed request, the Ministry also issued a revised interim decision dated July 29, 2002, in which it stated, in part:

Our preliminary estimate is that there are approximately 3736 pages of records, which include meeting minutes, e-mail messages with attachments (presentations, spreadsheets, communications information, EBR postings and analysis of comments received, Executive Committee pro formas), and a discussion paper.  We believe that most of the information that you have requested will be available to you, however the records may contain information that would qualify for exemption under sections 13 (advice to government), and 21 (personal privacy).

In its decision, the Ministry also provided an estimated fee of $2134.70, calculated as follows:

Search time (40.25 hours x $30.00 per hour)                                                  1207.50

Record preparation (6 hours x $30.00 per hour)                                               180.00

Photocopies (3736 pages x $0.20 per page)                                                      747.20

Total                                                                                                   $2,134.70

The Ministry also noted that there was no search time charged in the initial fee estimate for Parts 2, 3 and 4 of the original request as these items were readily available.  As such, the above estimate reflects a reduction in the number of pages responsive to the narrowed request, but there is no reduction in search time.  The Ministry also provided a breakdown of the fees in relation to each of the three items, as well as an explanation as to how the estimated fee was calculated.

Upon further discussions, the appellant advised the mediator that she is not appealing the fee estimate for Parts 5 and 6, but is appealing the fee estimate for Part 1.  The appellant advised that she also wishes to pursue a fee waiver, and would accordingly send additional information, as requested in the Ministry’s letter of July 29, 2002, which she did on August 2, 2002. 

On September 13, 2002, the Ministry issued a revised fee waiver decision, in which it advised the following:

It is the Ministry’s position that a fee waiver is not warranted in this instance.  However, in consideration of your current financial situation as presented, the Ministry is willing to reduce the fee estimate.  We are prepared not to charge you for record preparation which is estimated to be $180.00, and for ten hours of search time at $30.00 per hour.  As a result, the fee estimate will be reduced by $480.00 for a revised fee of $1654.70.

Upon receipt of this decision, the appellant advised the mediator that she wishes to continue her appeal of the Ministry’s decisions regarding both the fee estimate and the denial of a fee waiver relating to Part 1.  The appellant also confirmed that she is not appealing the fee estimate for Parts 5 and 6, and has therefore requested that the Ministry continue to process this portion of the request separately.  The appellant also offered to pay the fees for processing Parts 5 and 6 of her request.  However, the Ministry advised the mediator that it would not process Parts 5 and 6 until the fee issues are completely resolved.  The appellant advised the mediator that she objects to this approach.

I provided the Ministry with a Notice of Inquiry setting out the facts and issues remaining in this appeal and seeking its representations with respect to these matters.  The Ministry provided me with its submissions which were shared, in their entirety, with the appellant.  I also received detailed representations from the appellant and shared them, in turn, with the Ministry, which made additional submissions by way of reply.

DISCUSSION:

PRELIMINARY ISSUE:

SEVERING THE REQUEST

The appellant submits that her original request was framed in six parts at the suggestion of a Ministry staff person in order to reduce the filing fees to be paid.  The appellant also has provided me with evidence which indicates that the Ministry would not be inordinately inconvenienced by having to locate and issue a decision on access to the information responsive to Parts 5 and 6 of her request as these records are few in number and easily accessible.

In its reply submissions, the Ministry points out that the appellant acknowledges that the Ministry has the discretion to accede to her request to “split up” the request into its component parts in order to allow for access to those portions which can be responded to at little cost.  It adds that the decision to exercise its discretion not to treat portions of the request separately “has been for the sound and efficient administration of the Act” and should not be reviewed.

In my view, the appellant is seeking a review of the Ministry’s decision to charge her a fee for certain searches and preparation time, as well as its decision not to grant a fee waiver only with respect to Part 1 of her request.  The appellant is not, however, seeking a review of the quantum of the fee relating to Parts 5 and 6 of the request, nor is she seeking a fee waiver for this portion of the fee estimate.  I find that there is no issue between the parties with respect to the fees payable for Parts 5 and 6 of the request and will order the Ministry to proceed on the basis that the fees relating to these parts of the request are accepted by the appellant and are not subject to her request for a fee waiver.  In this way, the Ministry will recover the fee quoted for the work to be performed in responding to Parts 5 and 6 of the request and the appellant will obtain access to the records which are responsive to these parts of her request, subject to the application of the exemptions in the Act, if any are claimed.

I am mindful of the fact that, in different circumstances, the Ministry may be justified in refusing to process a request on this basis.  However, in the present situation, I am not satisfied that proceeding in this fashion will be onerous to the Ministry.  I have also considered the principle that timely access to information is important as information can often be a perishable commodity.  I would urge the Ministry to be flexible in its approach to the processing of multi-part requests.

FEE ESTIMATE

Introduction

Section 57(1) reads:

A head shall require the person who makes a request for access to a record to pay fees in the amounts prescribed by the regulations for,

(a)        the costs of every hour of manual search required to locate a record;

(b)        the costs of preparing the record for disclosure;

(c)        computer and other costs incurred in locating, retrieving, processing and copying a record;

(d)       shipping costs; and

(e)        any other costs incurred in responding to a request for access to a record.

Section 6 of Regulation 460 prescribes:

The following are the fees that shall be charged for the purposes of subsection 57(1) of the Act for access to a record:

1.      For photocopies and computer printouts, 20 cents per page.

2.      For floppy disks, $10 for each disk.

3.      For manually searching a record, $7.50 for each 15 minutes spent by any person.

4.      For preparing a record for disclosure, including severing a part of the record, $7.50 for each 15 minutes spent by any person.

5.      For developing a computer program or other method of producing a record from machine readable record, $15 for each 15 minutes spent by any person.

6.      The costs, including computer costs, that the institution incurs in locating, retrieving, processing and copying the record if those costs are specified in an invoice that the institution has received.

Introduction

Sections 48(1)(c) and 57(1) of the Act require an institution to charge fees for requests under the Act.  Section 57(4) requires an institution to waive fees in certain circumstances.  More specific provisions regarding fees and fee waiver are found in sections 6 through 9 of R.R.O. 1990, Regulation 460.  The IPC may review the amount of a fee or fee estimate, or the institution’s decision not to waive a fee.

Fee waiver

On an appeal of a fee waiver decision, the Commissioner may either confirm or overturn the decision based on a consideration of the criteria set out in section 57(4) of the Act.  The standard of review applicable to an institution’s decision under this section is “correctness” [Order P-474].

Factors for the IPC to consider in reviewing a decision to deny a fee waiver request include:

•         the extent to which the actual cost of processing, collecting and copying the records varies from the amount charged by the institution;

•         whether the payment will cause financial hardship for the requester;

•         whether dissemination of the records will benefit public health or safety;

•         whether the requester is given access to the records;

•         if the amount charged is under $5, whether the amount of the payment is too small to justify requiring payment.

In addition to the above, section 57(4) of the Act also requires consideration of whether it would be “fair and equitable” to waive the fee.  Previous orders have set out a number of factors to be considered to determine whether a denial of a fee waiver is “fair and equitable”.  These factors are:

•         the manner in which the institution attempted to respond to the appellant’s request;

•         whether the institution worked with the appellant to narrow and/or clarify the request;

•         whether the institution provided any documentation to the appellant free of charge;

•         whether the appellant worked constructively with the institution to narrow the scope of the request;

•         whether the request involves a large number of records;

•         whether or not the appellant has advanced a compromise solution which would reduce costs; and

•         whether the waiver of the fee would shift an unreasonable burden of the cost from the appellant to the institution.

[See Order M-408]

Other decisions have stated, where dissemination of information for the benefit of public health and safety may be a relevant factor:

1.         Whether the subject matter of the record is a matter of public rather than private interest;

2.         Whether the subject matter of the record relates directly to a public health or safety issue;

3.         Whether the dissemination of the record would yield a public benefit by a) disclosing a public health or safety concern or b) contributing meaningfully to the development of understanding of an important public health or safety issue;

4.         The probability that the requester will disseminate the contents of the record.

[Order P-474]

ORDER:

1.         I order the Ministry to provide a decision letter and a fee estimate with respect to Parts 5 and 6 of her request treating the date of this order as the date of the request and without recourse to a time extension under section 27 of the Act.

2.                  I uphold the Ministry’s fee of $1654.70 with respect to Part 1 of the appellant’s request.

3.         I uphold the Ministry’s decision to deny the appellant a fee waiver under section 57(4) of the Act with respect to Part 1 of the appellant’s request.

Original signed by:                                                                              March 20, 2003                                             

Donald Hale