ORDER PO-3595

Appeal PA15-418

Ministry of Children and Youth Services

April 8, 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 and PO-3035.

OVERVIEW:

[1]  The Ministry of Children and Youth Services [1] (the ministry) 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, the April 24, 2015 clarification and correspondence with Brant Child and Family Services.

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 advised that it conducted a preliminary search for responsive records and set out a fee estimate of $3,055.00 for processing the request.

[4]  The letter further provided as follows:

As discussed on May 29, 2015, … the ministry did not include media scans or newspaper articles in its preliminary search but did include drafts and final copies of documents.

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

In your request, you asked that the ministry consider a fee waiver for this request as any information released is intended to be used to serve the public’s interest. The Act  provides that all or part of the fee can be waived if, in the ministry’s opinion, the fee will cause you financial hardship or if the release of the record will benefit public health or safety; there is no waiver for public interest. If you are interested in proceeding with the application of a fee waiver, please provide proof to support any waiver claims.

[6]  In addition, the ministry advised that based on its preliminary search, it would claim that some information in the responsive records is subject to exemption under sections 19 (solicitor-client privilege) and 21 (invasion of privacy) of the Act . The ministry also took the position that:

some records may not be disclosed due to the prohibitions in s. 45(8)-(10) of the Child and Family Services Act.

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

[8]  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 .

[9]  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.

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

DISCUSSION:

[11]  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. [2] 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. ^[3]

[12]  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. ^[4] The fee estimate also assists requesters to decide whether to narrow the scope of a request in order to reduce the fees. ^[5]

[13]  In all cases, the institution must include a detailed breakdown of the fee, and a detailed statement as to how the fee was calculated. ^[6] 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.

[14]  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.

[15]  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

[16]  In support of its position that its fee estimate is reasonable the ministry provided extensive representations accompanied by an affidavit from the manager of its Access and Privacy Office.

[17]  In its representations, the ministry refers to its preliminary decision letter and how it had invited the appellant to “discuss ways in which the fee estimate could be reduced by narrowing the focus of the access request”. The ministry submitted that:

The ministry acknowledged that the fee was large and suggested some ways to potentially narrow the request to reduce the fee, including shortening the requested time period or limiting the search to a specific type of record, such as briefing notes. This offer was also made during the ministry’s attempt to mediate this appeal with the appellant and the IPC.

No such discussion was pursued by the appellant, who instead commenced this appeal and moved it to adjudication.

The ministry submits that its fee estimate of $3,055.00 is comprised of 34 hours of search time at $30.00 an hour ($1,020.00), 67.5 hours of preparation time at $30 an hour ($2,025.00) and the cost of a computer disk ($10.00).

[18]  The ministry submits that the search time includes both completed searches and estimated search time and that for the portion of the estimate based not on work actually done, the ministry relied on staff in its program areas and offices with particular knowledge of the records at issue.

[19]  The ministry submits:

In particular, the fee estimate was generated on the basis of searches undertaken by staff members in relation to either records they maintain in the performance of their ministry responsibilities, those of colleagues of which they would by extension be familiar with and in some instances support staff for individuals to whom administrative support is provided. The SORD [Serious Occurrence Database] was searched by a Program Support Coordinator who is familiar with the database and accesses them as part of her duties [footnote omitted]. Exhibit “A” of the ministry’s affidavit contains a detailed listing of staff responsible for assisting in developing the fee estimate as it relates to estimated search time and page counts.

This information was in turn evaluated by staff at the ministry’s Access and Privacy Office (APO), which has particular expertise in processing access to information requests. APO staff consulted with ministry staff from the various identified program areas and offices in order to estimate preparation time.

[20]  The ministry submits that accordingly, its fee estimate was based on the advice and partial work done by individuals familiar with the type and contents of the requested records, those being individuals who work with the records in question as part of their ministry duties, as well as staff with expertise in the processing of access to information requests.

[21]  With respect to its search, the ministry explains that at the time of the request the responsive records were “kept and maintained” in the following areas:

• Individual staff members’ e-mail systems;
• The ministry’s Serious Occurrence Database (SORD);
• Electronic shared folders; and
• Hard copy files located at the ministry’s Legal Services Branch (LSB)

[22]  The ministry submitted that the following steps were required to locate any responsive records:

For searches of e-mails: running key word searches for responsive e-mails and reviewing those e-mails to determine responsiveness, including the responsiveness of e-mail attachments. E-mails may be organized differently by individual staff based on their duties and preferences. Further, in the search instructions distributed to staff following the teleconference [7] , details were given regarding search dates for responsive records and potential key words to use.

For searching the SORD: searching the database using the initials of the individuals to whom the information relates and reviewing SORs for responsiveness; […] this took a total of 20 minutes.

For searching electronic shared files: running key word searches for responsive records and reviewing those records to determine responsiveness. Reviewing folders for those that may contain responsive records based on their described content.

For hard copy files (for LSB): locating hard copy files using the office’s file management system and reviewing those files to identify responsive records [footnote omitted].

[23]  With respect to the fee estimate for preparing the records for disclosure the ministry submits that this only relates to the cost of severing responsive records.

[24]  The ministry submits that its estimate that half of the records will require at least partial severances is based on consultations with knowledgeable program area staff and further supported by the following:

The request itself is for records relating to identifiable individuals, such that their privacy rights are plainly engaged by the request and further heightened by the fact that the request relates to family law proceedings and medical treatment relating to these individuals; and

Further, the requested records include records from the ministry’s Legal Services Branch and will require review given the potential application of solicitor-client privilege to the majority of the records.

[25]  The ministry submits that it relied upon knowledgeable ministry staff to estimate the page count and sound methodology to attempt to reduce duplication in the page count.

[26]  In her affidavit, the manager of the ministry’s Access and Privacy Office, sets out that in order to develop a fee estimate she consulted with program staff in the Western Region as well as the Assistant Deputy Minister’s Office staff in the Service Delivery Division. Based on this consultation, the nature of the request and her knowledge of the ministry, she submitted that she forwarded the request to ministry program areas and offices that she thought may have responsive records, as follows:

The Minister’s Office (MO);

The Deputy Minister’s Office (DMO);

The office of the Assistant Deputy Minister, Service Delivery Division (ADM-SDD);

Communications and Marketing Branch (CMB);

The Child Welfare Secretariat (CWS);

The West Regional Office of the ministry (WRO), as this office serves the Hamilton area; and

Legal Services Branch (LSB).

[27]  She deposes that in order to coordinate the preparation of the fee estimate, she organized a teleconference with representatives from the above noted offices, in order to discuss the access request and how to prepare a fee estimate. She deposes that:

… The purpose of this teleconference was to create a forum in which staff could ask questions about how to generate a fee estimate and also so that a consistent approach was adopted between program areas. Instructions were sent to all attendees later to further ensure a consistent approach to interpreting the request and searching for responsive records.

[28]  She further deposes that:

I am advised by staff of the various program areas and offices that responsive records related to this request were, at the time of the request, located predominantly in the files of individual staff, primarily staff members’ e-mail systems and shared drives.

In addition to e-mail systems, program area staff also identified the ministry’s Serious Occurrence Database (SORD), electronic shared folders and hard copy and electronic (i.e. individual staff’s computer drives) files at the ministry’s LSB as holding responsive records.

[29]  She further deposes that:

The fee estimate was generated on the basis of estimates by staff members in relation to either records they maintain in the performance of their ministry responsibilities, those of colleagues of which they would by extension be familiar and in some instances support staff for individuals to whom administrative support is provided. I am advised that the SORD was searched by a Program Support Coordinator who is familiar with the database and accesses them as part of her duties. With respect to a search of the shared drives, I am advised that only one staff in each program area or office was assigned the responsibility of searching the shared drives, in order to avoid duplication.

[30]  Attached as exhibit “A” to her affidavit was a list of offices, staff members responsible for the search and types of files containing responsive records.

[31]  She further deposes that the following information was provided with respect to the estimated page counts and search times;

MO: an estimated 2,500 pages of records were identified by staff, who estimated a total search time of 10 hours.

 
DMO: Staff identified 48 responsive records and a search time of 2.5 hours. This search is therefore complete.

ADMO-SDD: Staff identified 55 pages of records and a search time of 1.5 hours. This search is therefore complete.

 
CMB: Staff identified 373 pages and estimated 1 hour of search time. This search is therefore complete.

 
CWS: approximately 15 pages of records were found and an estimated 15 minutes of search time. This search is therefore complete.

 
WRO: Approximately 1084 pages of records were estimated and approximately 7 hours of search time. This search is therefore complete.

 
LSB: Approximately 3,070 pages of responsive records were estimated and 18 hours of search time estimated.

[32]  She further deposed that she was advised that the search time involved in responding to the appellant’s request would include search time attributable to the following:

For searches of e-mails: running key word searches for responsive e-mails and reviewing those e-mails to determine responsiveness, including the responsiveness of e-mail attachments. E-mails may be organized differently by individual staff based on their duties and preferences. In the search instructions distributed to staff following the teleconference, details were given regarding search dates for responsive records and potential key words to use.

For searching the SORD: searching the database using the initials of the individuals to whom the information relates and reviewing SORs for responsiveness; I am advised that this took a total of 20 minutes.

For searching electronic shared files: running key word searches for responsive records and reviewing those records to determine responsiveness. Reviewing folders for those that may contain responsive records based on their described content.

For hard copy files (for LSB): locating hard copy files using the office’s file management system and reviewing those files to identify responsive records.

[33]  With respect to the calculation of the page count, she deposes that:

I am advised by staff from the program areas and offices that the page count was either established based on work completed … or based on the number of responsive records in a sampling of records that was then extrapolated based on the size of the total holdings of responsive records in the program area or office.

In my experience, it is likely that the total page count contains duplicates of records that were transmitted between program areas or that were distributed to a number of staff, for example by way of an e-mail.

[34]  She deposes that in order to account for duplicates, she made the following assumptions:

Some offices may have higher levels of duplication where staff functions are similar. For example, generally staff in the Minister’s Office or Deputy Minister’s Office or the Assistant Deputy Minister’s Office may be copied or receive the same emails, which creates some duplication within the ministry.

Since the requester specified that she wanted both drafts and final copies, and given my understanding of the ministry approvals process, I also considered this reducing the page count.

I was informed by counsel at LSB that of the 3,070 page estimate, there would be considerable duplication from what was estimated with the other branches, given LSB’s role in providing legal services.

[35]  She deposes that:

Therefore, I reduced the following page count from approximately 7,000 pages by half taking into account the possibility of duplication of the fee estimate and records that would not be released to the requester because a preliminary assessment indicates that they would be withheld in full.

[36]  With respect to the calculation of the preparation time she deposes that she was informed by counsel at LSB that, in her view, almost the entirety of records received from LSB would require redactions for solicitor-client privilege, given the nature of the role of LSB and ministry counsel in providing legal advice to ministry staff.

[37]  She further deposes that:

After consulting with program staff in the Western Regional Office, and given the nature of the request, that being a request for records related to two identifiable individuals including legal proceedings in which they are involved and their medical treatment, as well as my experience in process access requests, I estimated that a number of records would require redactions for personal information.

In light of the above, based on my experience in processing access requests, I estimated that half of the records would require at least partial severances.

My calculation for preparation time only included time required for severing a record and is based on an assumed two minutes to sever a page that requires multiple severances.

The appellant’s representations

[38]  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 estimate is excessive and how the fee estimate taken alone or in conjunction with two other requests is so high as to amount to a barrier to access.

[39]  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.

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

[41]  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.

[42]  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.

[43]  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.”

[44]  With respect to the fee estimate at issue in this appeal, the appellant submits that the ministry 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.”

[45]  With respect to the preparation fee estimate the appellant submits that the costs are unreasonable “because the sheer number of documents is beyond belief. The [ministry] claims it needs 67.5 hours of prep time - 1 1/2 work weeks”.

[46]  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.

[47]  She submits that, in addition to the fee estimate at issue in this appeal, she was given a fee estimate of $4,200.00 for processing the request at issue in appeal PA15-419 and $2,080.00 for processing the request at issue in appeal PA15-420, totalling $9,335.00.

[48]  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.

[49]  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] 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.

[50]  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] 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] 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.

[51]  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

[52]  The ministry submits that the appellant’s position that the case referred to in her access request is “precedent-setting” and her submissions regarding “accountability and transparency” are not relevant to this appeal. The ministry submits that neither a fee waiver, nor the application of exemptions (including the public interest override under section 23), are at issue in this appeal.

[53]  The ministry further submits that the appellant has made minimal efforts to narrow or focus her request and has not attempted to work with the ministry to explore ways to narrow the scope of the request.

[54]  The ministry submits:

Although the appellant indicates that she was given little information during mediation, the appellant herself describes her attempt to narrow or focus her request as consisting solely of being prepared to agree to limit her request to emails and attachments, based on her own view of the ministry’s record holdings. By her own admission, following this one proposal, no further attempts were made by the appellant to narrow or focus her request, which she indicates was based on her own views of the ministry’s records. The appellant immediately moved the appeal to adjudication. The ministry submits that this failure to work with the ministry, thereby frustrating the purpose of the fee estimate, ought to be taken into consideration in determining whether to uphold the ministry’s fee estimate.

[55]  The ministry also submits that the orders referenced by the appellant are of limited application. The ministry submits that:

… a fee estimate is specific to the particular request at issue, and the ministry has already described in detail the steps taken to assess the fee estimate on appeal. Further, the Orders on which the appellant relies are easily distinguishable from the case at hand. The responsive records at issue in those appeals consisted of a discrete set of records, namely expense claims. In contrast, the request at issue is broad as evidenced by Exhibit “A” to the ministry’s affidavit, setting out the ministry offices that are in possession of responsive records. The ministry submits that its due diligence in ensuring an exhaustive search was undertaken, reflective of the appellant’s broad request, should not be misconstrued as an inadequacy in its record holdings.

Accordingly, to the appellant’s assertion that she is bearing the financial burden of the institution’s failure to implement proper record management practices, the ministry submits again, that the appellant has failed to narrow or revise her broad request in an attempt to lower the fee estimate.

Analysis and finding

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

[57]  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. [8]

[58]   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.

[59]  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.

[60]  Based on my review of its representations, I find that the ministry provided me with sufficient evidence to substantiate the actual and 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 $1,020.00, which is comprised of actual and estimated search time. I note that the ministry advised that the search time for records in the Minister’s Office and the Legal Services Branch are estimates and that if the actual search for those records takes less time, the ministry will reduce the fee, as appropriate.

[61]  With respect to the record preparation component of the fee which is governed by section 57(1) (b) of the Act , the ministry allocated 67.5 hours at a cost of $30 per hour, with a total of $2,025.00 in its fee estimate, as the time required for preparing the records for disclosure. The ministry indicates that this time is required to sever exempt information, such as information exempt under sections 19 (solicitor-client privilege) and 21(1) (personal information). Generally, this office has accepted that it takes two minutes to sever a page that requires multiple severances. ^[9] Using this formula, I find that the ministry’s estimate of $2,025.00 would cover the preparation of 2025 pages of responsive records. In light of the appellant’s broad request, I find that it is not unreasonable for the ministry to estimate that it will be required to prepare approximately 2025 pages of records for disclosure. Accordingly, I also uphold this part of the fee estimate. However, I note that if the actual preparation of records takes less time, the ministry should reduce the fee balance, as appropriate.

[62]  In addition, the $10.00 cost of a CD under section 6(2) of Regulation 460 is also reasonable.

[63]  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. [10] In that regard, it is the breadth of the appellant’s request that result in the estimated 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.

[64]  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:		April 8, 2016
Steven Faughnan
Adjudicator