Access to Information Orders
Decision Information
• Request for the emails of four named individuals covering a defined period of time.
• Fee estimate - upheld in part.
• Time extension - upheld.
• Custody and control decision - upheld.
• Municipality's decision upheld in part.
Decision Content
NATURE OF THE APPEAL:
The Municipality of North Perth (the Municipality) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to the corporate and personal emails of four named individuals (a councillor, a named individual, an employee and a former employee) over an identified time period (greater than 4 years). The request also stated:
... I am requesting copies of these on a portable hard disk or a USB drive of which I will supply. ...
In addition to the above, I am requesting all deleted emails for the same period [of] time stated ... which can be obtained through ghosting the computer hard drives or the email server storage system or drives.
The Municipality’s initial decision letter in response to the request stated that it did not have access to the email account of the named councillor, and that these records were not, accordingly, within its custody or control. With respect to the remaining requested records, the decision provided a large fee estimate to deal with the request, and indicated that the timeline to respond to the request would be approximately eight months.
The requester then submitted a revised request for just the emails of the councillor and the named individual covering a period of time of approximately 10 months.
The Municipality issued a second decision in which it confirmed that the named councillor’s emails are not in its custody or control. With respect to the request for the named individual’s emails for the identified period, the Municipality provided a revised fee estimate of $6,470.00. The Municipality also advised that it would need to hire additional staff to fulfill the request and that the timeline to respond would be approximately three months.
The requester, now the appellant, appealed the Municipality’s decision.
During mediation, the Municipality issued a revised, interim access decision, which included additional information. The appellant subsequently decided to expand the scope of the request to include the e-mails of the identified employee for the newly-identified time period.
In response, the Municipality issued a further revised interim access decision (dated October 28, 2010). In that decision, the Municipality stated that it was likely that third party notification would be required since the responsive records relate to other individuals and/or third parties. The Municipality also indicated that, based on a review of a representative sample of the records, it estimated that partial access would be granted to the responsive records, but that access to portions of them would be denied on the basis of a number of identified exemptions in the Act. The Municipality also stated that the fee estimate for the records (based on a representative sample) was $7,285.50, and that the anticipated time to compile the records would be 60 days. Finally, the Municipality reiterated its position that emails relating to the named councillor are not in its custody or control.
The appellant confirmed that he was appealing the fee estimate of $7,285.50 and the 60-day time extension, as well as the decision that the emails of the named councillor are not within the custody or control of the Municipality.
Mediation did not resolve this appeal, and it was transferred to the inquiry stage of the process, where an adjudicator conducts an inquiry under the Act. I sent a Notice of Inquiry to the Municipality, initially, and received representations in response. I then sent the Notice of Inquiry, along with a copy of the Municipality’s representations, to the appellant, who sent in representations which only addressed the issue of the amount of the fee estimate.
PRELIMINARY MATTER
In his representations, the appellant argues that, because of the actions of the Municipality, including the amounts of fees charged and the time this matter has taken, any fees should be waived. Section 45(4) of the Act deals with the subject of fee waiver, and previous orders have confirmed that a requester must first ask the institution for a fee waiver, and provide detailed information to support the request, before this office will consider whether a fee waiver should be granted [See orders M-914, P-1393, PO-1953-F]. Accordingly, I will not address this issue in this order. Furthermore, the basis of the appellant’s interest in a fee waiver appears to be the amount of the fees charged and the time this matter has taken. I address both of these issues below, and also note that, in the course of this appeal, the appellant amended his request a number of times, including once after the Mediator’s Report was prepared and issued.
DISCUSSION:
FEE ESTIMATE
General principles
Section 45(1) authorizes an institution to charge fees for requests under the Act. That section 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.
More specific provisions regarding fees are found in section 6 of Regulation 823 made under the Act. That section reads:
6. The following are the fees that shall be charged for the purposes of subsection 45(1) of the Act for access to a record:
1. For photocopies and computer printouts, 20 cents per page.
2. For records provided on CD-ROMs, $10 for each CD-ROM.
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.
Where the fee exceeds $25, an institution must provide the requester with a fee estimate. Section 7 of Regulation 823 states that, where the fee is $100 or more, the institution may require the requester to pay a deposit equal to 50% of the fee estimate before the institution takes any further steps to process the appeal.
A fee estimate of $100 or more must be based on either
- the actual work done by the institution to respond to the request, or
- a review of a representative sample of the records and/or the advice of an individual who is familiar with the type and content of the records.
[Orders P-81, MO-1699]
The purpose of a fee estimate is to give the requester sufficient information to make an informed decision on whether or not to pay the fee and pursue access [Orders P-81, MO-1367, MO-1479, MO-1614, MO-1699]. The fee estimate also assists requesters in deciding whether to narrow the scope of a request in order to reduce the fees [Order MO-1520-I]. In all cases, the institution must include a detailed breakdown of the fee, and a detailed statement as to how the fee was calculated [Order P-81, MO-1614]. This office may review an institution’s fee and determine whether it complies with the fee provisions in the Act and Regulation 823, as set out above.
The Municipality’s revised fee estimate decision
As set out above, the Municipality provided a revised fee estimate decision, in which it described the costs which form the basis of the fee estimate of $7285.50 as follows:
| Description |
Time |
Total |
| Search time |
3 hours |
$ 90.00 |
| Preparation time |
180.57 hours/$30.00 per hour |
$ 5417.10 |
| Photocopying charges |
5,417 pages @$0.20 per page |
$ 1083.40 |
| Computer consultant |
|
$ 695.00 |
| Total |
|
$ 7285.50 |