ORDER PO-3592

Appeal PA15-419

Ministry of the Attorney General

March 31, 2016

Summary: The sole issue in this appeal is the appropriateness of the fee estimate provided by the ministry for access to records pertaining to a specific matter. In this order the ministry’s fee estimate is upheld and the appeal is dismissed.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 57(1)(a) and (b); section 6 of regulation 460.

Orders Considered: PO-3205, PO-3206, PO-3215 and PO-3035.

OVERVIEW:

[1]  The Ministry of the Attorney General (the ministry or MAG) received a request under the Freedom of Information and Protection of Privacy Act  (the Act  or FIPPA ) for access to the following information:

… [a]ll records regarding two aboriginal children refusing chemotherapy at McMaster Children’s Hospital and the resulting Ontario court family division case between Hamilton Health Sciences and Brant Child and Family Services including but not limited to records regarding the Nov. 14, 2014 decision, April 24, 2015 clarification, correspondence and meeting agenda with First Nations and the families.

If the information is available in electronic format, [the requester asked] that it be released in that format to reduce any potential costs.

[2]  The requester also asked that the ministry consider a fee waiver for the request, on the basis that any information released “is intended to be used to serve the public’s interest”.

[3]  In its preliminary decision letter, the ministry set out a fee estimate of $4,200.00 for processing the request.

[4]  With respect to the fee waiver the letter advised the requester that:

The Act  provides that all or part of the fee can be waived if, in your opinion, the fee will cause you financial hardship or if the release of the record will benefit public health or safety. You may be required to provide proof to support any waiver claims. Please notify us as soon as possible if you wish to proceed with a request for a fee waiver.

[5]  In addition, the ministry advised that although a final decision had not been made regarding access, it would likely claim that the exemptions at sections 13 (advice or recommendations), 19 (solicitor-client privilege) and 21 (invasion of privacy) of the Act  apply to the responsive records.

[6]  The requester (now the appellant) appealed the ministry’s fee estimate.

[7]  Mediation did not resolve the appeal and it was moved to the adjudication stage of the appeals process where an adjudicator conducts an inquiry under the Act .

[8]  During my inquiry into this appeal, I sought and received the representations of the parties that were shared in accordance with section 7 of this office’s Code of Procedure and Practice Direction 7.

[9]  The sole issue in this appeal is whether the fee estimate should be upheld.

DISCUSSION:

[10]  An institution must advise the requester of the applicable fee where the fee is $25 or less. Where the fee exceeds $25, an institution must provide the requester with a fee estimate. [1] Where the fee is $100 or more, the fee estimate may 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. ^[2]

[11]  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. ^[3] The fee estimate also assists requesters to decide whether to narrow the scope of a request in order to reduce the fees. ^[4]

[12]  In all cases, the institution must include a detailed breakdown of the fee, and a detailed statement as to how the fee was calculated. ^[5] This office may review an institution’s fee and determine whether it complies with the fee provisions in the Act and Regulation 460, as set out below.

[13]  Section 57(1) requires 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.

[14]  More specific provisions regarding fees are found in section 6 of Regulation 460, which reads, in part:

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

…

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.

The ministry’s representations

[15]  The ministry submits that it has responsive records because it provided legal advice to the government on how Ontario should respond to the court matters mentioned by the requester. The ministry submits that:

These proceedings raised significant issues about the best interests of the child, which are paramount, as well as issues relating to Aboriginal rights protected under the Canadian constitution and an integrated approach to health care that respects and brings together different healing traditions.

[16]  The ministry submits that Records responsive to the request exist in a number of areas of the ministry, including: the Office of the Children’s Lawyer, Crown Law Office - Civil, Constitutional Law Branch, Communications Branch, the Office of the Assistant Deputy Minister - Legal Services Division, the Deputy Minister’s Office, and the Minister’s Office.

[17]  The ministry submits that:

All of the relevant areas of the ministry were contacted and provided instructions with respect to the conduct of a search and the preparation of a fee estimate. At a branch level, individual staff were approached with respect to their own record holdings, about which they are obviously knowledgeable. In addition, with respect to collective records holdings, knowledgeable staff familiar with the nature and management of those collective records was asked to provide search estimates.

The ministry’s records consist primarily of emails and other electronic documents, but also include paper records. The amount of time required to identify a potentially responsive record varies widely, depending on the nature of the record and its stored location. In some cases, records in specific files which relate solely to the matters at issue can be reviewed very quickly to determine responsiveness. In other cases - records identified by keyword search, for example - can require greater time, given that they may not be about these matters alone, such that the potentially responsive portion of the record is found in the body of the document and therefore takes longer to identify.

[18]  The ministry set out its estimated search time in a chart it provided with its representations, which is reproduced below.

 

	Estimated Number of Records	Estimated Number of Pages	Estimated Search Time
Crown Law Office - Civil; Constitutional Law Branch	18,000	39,000	113 hours
Deputy Minister’s Office; Minister’s Office; Communications Branch	2500	4800	11 hours
Office of the Assistant Deputy Minister - Legal Services Division	3000	9000	16 hours
Office of the Children’s Lawyer Records exist, but it is the position of the Children’s Lawyer that these records are not in the custody or control of MAG because they relate to work performed on behalf of individuals Total 140 hours

 

[19]  The ministry acknowledged that a large fee estimate such as the one at issue in this appeal may be less precise than a fee estimate for a smaller number of records, but adds:

… Nonetheless, the ministry has made best efforts to ensure that even this large estimate is as accurate as possible. By way of detailed example, there are at least 15 individuals at Crown Law Office - Civil who have responsive records. All 15 individuals were asked to provide a description of their record holdings along with an estimate of the amount of time required to identify potentially responsive records through keyword searches or otherwise, and to then review those records for responsiveness. Each individual provided a response and those responses were compiled. In addition, a representative search was conducted on the office’s collective file. The individual estimates ranged from one individual who has 3500-4000 responsive emails and electronic records (10,000 pages, with attachments) which amounted to an estimated search time of 13 hours; to another individual who has approximately 55 responsive emails and electronic records, or an estimated search time of about 20 minutes.

It should be emphasized that the time estimated for the conduct of the MAG searches includes only time that would be required for identifying records for responsiveness. To be clear, the MAG fee estimate does not include time that would be required to review responsive records for exemptions. The amount of time required to review responsive records for exemptions would of course be greater, but charging for this type of time expenditure has been held not to be permissible.

There is a certain degree of inevitable duplication in the MAG records - in some cases multiple copies of the same record exists in the holdings of different staff. For example, an email copied to a number of individuals will in many cases have been retained by all of the individuals involved. However, the time estimate provided to the requester includes only that time required to identify potentially responsive records - no time has been charged for the removal of duplicates that will be required should the request be processed.

[20]  The ministry further submits that its fee estimate does not include time for the redaction of records or photocopy costs. The ministry explains that this is because it anticipates that the records will likely be subject to the exemption in section 19  of the Act  in their entirety, such that redactions will not be required.

The appellant’s representations

[21]  The appellant’s representations focus on the case which gave rise to the request, which she submits is of great public importance. They also focus on how the fee is excessive and how the fee taken alone or in conjunction with two other requests is so high as to amount to a barrier to access.

[22]  She submits:

This case dealt with difficult questions relating to the rights of parents - particularly aboriginal parents - that could have a broad impact on society. It was a Canadian first from the outset as a hospital had never before taken a children’s aid society to court for refusing to intervene and force medical treatment on a child.

[23]  She submits that the request is for recent records covering a short time period and that all the searches “should be entirely electronic”.

[24]  She also submits that:

The records are regarding a very specific case so should be easily searchable. It does not request specific records because there is no way for me to know what records exist. I was given little information during mediation that would help me determine what records would be of most interest to the public. This case is of great public importance making accountability and transparency paramount.

[25]  She submits that during mediation she agreed to exclude newspaper articles and media scans from her request and that she would further limit her request to responsive emails and attachments. She states:

I was informed by the mediator that this would not be helpful as it would not significantly reduce the records. I was unwilling to narrow my request further than emails and their attachments and so I requested to end mediation as it was clear there was no chance of a resolution.

I feel the fact that narrowing my request to emails and attachments would make no significant difference in the number of records proves the documents should be easily searchable electronically.

[26]  The appellant also refers to Order PO-3035 which she submits stands for the principle that an “appellant should not bear the financial burden of an institution’s failure to implement proper record management practices.”

[27]  With respect to the fee estimate at issue in this appeal, the appellant submits that the ministry advised her that it would take 140 hours of search time to locate responsive records and states “[t]hat is equivalent to three-and-a-half full-time work weeks. I have no understanding of why records on a very specific case would take that long to search electronically.”

[28]  With respect to the preparation fee the appellant states that the ministry “has not yet even calculated costs for prep time suggesting there is a chance the fee will be even higher than the current estimate in the end.”

[29]  The appellant then submits that the amount of the fee estimate in this appeal on its own, or in conjunction with the fee estimates given in other appeals dealing with similar requests, but made to different institutions, amounts to a barrier to access.

[30]  She submits that, in addition to the fee estimate at issue in this appeal, she was given a fee estimate of $3,055.00 for processing the request at issue in appeal PA15-418 and $2,080.00 for processing the request at issue in appeal PA15-420, totalling $9,335.00.

[31]  She submits:

Each fee on its own would be a barrier to the public having access to this information but together, it is particularly insurmountable making accountability and transparency next to impossible in this case.

I also believe the fees are excessive for documents that should be easily searchable electronically.

 

[32]  With respect to search time for processing the requests, she states:

I was told it would take 140 hours of search time by the Attorney General in PA15-419. That is equivalent to three-and-a-half full-time work weeks. I have no understanding of why records on a very specific case would take that long to search electronically.

The Ministry of Children and Youth Services in PA15-418 estimates a search time of 34 hours which is close to one work week - again a very long time for an electronic search of a specific case.

The Ministry of Aboriginal Affairs in PA15-420 estimated a search time of 24 hours or more than half a work week.

Collectively, they claim they need almost 200 hours to electronically search a very specific case. That is almost five full work weeks.

[33]  With respect to the number of pages of responsive records, the appellant submits:

The Ministry of the Attorney General in PA15-419 estimates it has 52,800 pages of documents on this case. That is a phenomenal amount of pages. Considering the average novel is 250 pages, that would be more than 211 books worth of documents.

Put together with the 7,145 pages of documents the Ministry of Children and Youth Services outlines in PA15-418 and the 2,700 pages at the Ministry of Aboriginal Affairs in appeal PA15-420 and it comes out to a total of 62,645 pages of documents or more than 250 novels worth of documents.

I believe the preparation time costs are unreasonable because the sheer number of documents is beyond belief. The Ministry of Children and Youth Services claims it needs 67.5 hours of prep time - 1 1/2 work weeks in PA15-418. The Ministry of Aboriginal Affairs says it requires 45 hours of preparation time or more than one work week. The Attorney General has not yet even calculated costs for prep time suggesting there is a chance the fee will be even higher than the current estimate in the end.

[34]  The appellant relies on Orders PO-3205, PO-3206 and PO-3215 arguing that, “in these three cases - also involving records of great public interest - combined fees of $7,748 were brought down to a reasonable combined amount of $1,228 which allowed the public access to the records.” She further submits:

In these cases the request covered four-and-a-half years compared to 16 months in this case. The records also went back to 2007 in these cases while they only go back to 2014 in this case.

If four-and-a-half years of records going back to 2007 are expected to be easily searched. “without taking an entire work week to do so” than surely 16 months’ worth of records going back to 2014 should not take longer.

The ministry’s reply representations

[35]  The ministry submits in reply that this appeal does not involve a fee waiver request under section 57(4). Similarly, this appeal does not involve the consideration of the exemptions that would apply to the responsive records including the potential application of the public interest override under section 23  of the Act .

[36]  The ministry further submits that:

The requester emphasizes the significance and complexity of the court matters, but then takes exception to the estimated volume of records that the ministry generated in response to these important matters.

As noted in the ministry’s initial representations, these proceedings raised significant issues about the best interests of the child, which are paramount, as well as issues relating to Aboriginal rights protected under the Canadian constitution and an integrated approach to health care that respects and brings together different healing traditions. The ministry’s response to the proceedings was commensurate to its importance. As a result, a large volume of records was generated.

There are, of course, many duplicate records. For example, an email could be copied to many different staff. A reasonable search requires that each of those staff members be approached and asked to search for responsive records in their files. This results in a large cumulative number of pages, even though many of those pages will be the same. The search of each staff members records, regardless of any ultimate duplication, is nonetheless required by the parameters of a reasonable search: in the event of a reasonable search appeal, if the ministry had not approached all staff involved in the matters, then it would be ordered to do a more complete search.

This inevitable duplication contributes to the requester’s concerns about the volume of records. Many of the documents will in fact be the same. However, given the ministry’s search obligations under the Act , each of these responsive records must be identified at the outset as part of the search, and will thereby contribute to the estimated total page count for search purposes. This is the case even if many of those pages will ultimately be removed as duplicates if the request is processed.

Again, the time estimate provided to the requester includes only that time required to identify potentially responsive records - no time has been charged for the removal of duplicates that will be necessary should the request be processed (nor has the time that will be required for review for exemptions been included).

[37]  The ministry also takes issue with the appellant’s submissions on its record keeping practices and distinguishes the orders cited by the appellant. It submits:

The original Order in this area is Order PO-3035 which stands for the principle that a requester should not bear the financial burden of an institution’s failure to implement proper record management practices. The remaining Orders referred to by the requester relate to the application of this principle to particular fact situations.

It is the ministry’s submission that its record-keeping practices are sound, and that the facts in this appeal are not at all the same as those considered by the IPC in the Orders cited by the requester. PO-3205, PO-3206, and PO-3215 were all requests for expense claims (as was Order PO-3035), which the IPC held were general records regarding accounting which should be readily retrievable. In contrast, the breadth of the request in this case, along with the nature of the ministry’s record holdings, are very different from those addressed in the expense Orders.

Other IPC Orders have distinguished the expense claim Orders based on the nature and scope of the requests at issue and the searches that would be required as a result. Examples include Orders MO-3123 and PO-3384, in which the IPC upheld the respective fee estimates after taking into consideration the nature of the requests at issue, and the fact that they would require searches across many branches and divisions of the institution.

[38]  The ministry submits that the records responsive to this broad request are necessarily held in many areas of the ministry and by many staff members. It submits that:

This is not a focused request for accounting records which could reasonably be expected to be found in one area of the ministry. Similarly, paper and electronic searches will be required, again as detailed in the ministry’s original submissions. The bulk of these searches will be performed electronically, and while staff files are file-specific, electronic ‘hits’ will still have to be reviewed, however briefly, for responsiveness.

Analysis and finding

[39]  Although the appellant initially requested a fee waiver she did not pursue it. Accordingly, I am not addressing a fee waiver in this appeal.

[40]  To begin, I do not accept the appellant’s position that I ought to consider as a factor the “collective” fee estimates to be paid for the three requests she has made to three separate ministries. The fee provisions in the Act  are clearly set out and based on a “user-pay” principle. Each institution is required to review its own record holdings for responsive records and charge fees and provide fee estimates as set out in the Act . The fact that the appellant has made separate requests to separate ministries, which results in a large combined fee estimate, does not impact my review of the appropriateness of the particular fee estimate in this appeal. [6]

[41]  Furthermore, I note that the fee estimate at issue in this appeal only relates to the ministry’s estimated search time. This is because the ministry has stated that it anticipates that access will likely be denied to all of the records on the basis of the exemption in section 19.

[42]  With respect to the search time under section 57(1)(a), I agree with the ministry that the appellant’s request is very broad and that the range of the search is at the root of the large search fee. In her representations, the appellant refers to Order PO-3035, in which Commissioner Brian Beamish stated that records of recent origin should be kept in a consistent and easily searchable manner and that the requester in that case should not bear the financial burden of the university’s failure to implement proper record management practices. Orders PO-3205, PO-3206 and PO-3215 are based on this premise. While I agree with Commissioner Beamish’s findings, I find that they are not applicable to the facts of this appeal. In Order PO-3035, the requester sought access to copies of all expense receipts submitted to a university for all domestic and international flights taken by a named individual for a five year period. In this appeal, the appellant seeks all records under the ministry’s custody or control relating to the case that gave rise to the appeal.

[43]  During mediation, the appellant offered to limit the scope of the search to exclude newspaper articles and media scans and only be for responsive emails and attachments. However, despite this narrowing of scope, I find that the appellant’s request is still extremely broad.

[44]  Based on my review of its representations, I find that the ministry provided me with sufficient evidence to substantiate the estimated amount of time required to locate responsive records. In arriving at its search fee estimate under section 57(1)(a), I find that the ministry properly sought the advice of individuals who were familiar with the type and contents of the requested records. For these reasons, I uphold the estimated fee for search time under section 57(1)(a) of $4,200.00. I note that the ministry advised that the search time is an estimate and that if the actual search takes less time, the fee will be reduced, as appropriate.

[45]  Finally, where a request is broad and involves records that are likely to be dispersed through an institution, high search and preparation fees may apply. [7] In that regard, it is the breadth of the appellant’s request that result in the estimated search fee. It is therefore the scope of the request and not the method of calculating the estimated fee that results in the amount to be charged for processing the request.

[46]  Accordingly, in all the circumstances I uphold the ministry’s fee estimate and dismiss the appeal.

ORDER:

I uphold the ministry’s fee estimate and dismiss the appeal.

Original Signed by:		March 31, 2016
Steven Faughnan
Adjudicator