ORDER MO-3363

Appeal MA14-12-2

City of Toronto

October 11, 2016

Summary: The issues in this appeal are whether a fee estimate should be upheld and whether the fee should be waived by the City of Toronto (the city). The city issued a fee estimate to the appellant in response to an access request for records, including emails, between certain individuals relating to two identified properties. The city issued a fee estimate for the cost of restoring back-up tapes to re-build email accounts, and denied the appellant’s request for a fee waiver. In this order, the adjudicator upholds the fee estimate and finds that there is no basis for a fee waiver. The appeal is dismissed.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 45(1), 45(4); Regulation 823, sections 6 and 8.

Orders and Investigation Reports Considered: Order MO-3079.

OVERVIEW:

[1]  This order disposes of the issues raised as a result of a fee estimate and a fee waiver decision issued by the City of Toronto (the city) in response to an access request made under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ). The access request was for records, including communications between six specified individuals, relating to two identified properties from 2007 to the date of the request. In response, the city issued a decision letter, granting partial access to the records. The requester was of the view that further records should exist. The city then conducted a second search for records, located an additional 227 pages of records and issued a supplemental decision letter to the requester, granting partial access to them. The requester (now the appellant) filed an appeal of the city’s decisions to this office. As a result, appeal file MA14-12 was opened, which was dealt with by former Adjudicator Donald Hale.

[2]  During the adjudication stage of the appeals process, where one of the issues identified was reasonable search, the city sent a letter to the appellant, advising him that additional responsive email records may or may not exist in response to his request. The city advised that the emails may be located on 24 reels of computer tapes used to archive records from 2007 to May of 2011. The city provided a fee estimate of $5,760.00, comprising 192 hours of search time at the rate of $30.00 per hour. The city also advised the appellant that a deposit of $2,880.00 (50 percent of the fee) was required prior to proceeding with the request. In response, the appellant requested a fee waiver, stating that it was fair and equitable for the city to waive the fee because the appellant had to incur legal and filing costs in appeal MA14-12, due to the city’s unreasonable searches for records.

[3]  The city denied the appellant’s request for a fee waiver. The appellant appealed the city’s decision to this office and appeal file MA14-12-2 was opened to address the issues of the fee estimate and the fee waiver. In his appeal letter, the appellant stated that the city claimed that it initially overlooked informing him regarding the possible existence of records contained in the back-up tapes of city emails. The appellant also stated that the actual cost to restore the tapes was not accurately reflected in the fee estimate and expressed concern about paying the estimated fee when it was not clear whether he would receive access to any of the records. This appeal was placed on hold, pending the adjudication of appeal MA14-12.

[4]  On June 29, 2015, former Adjudicator Hale disposed of appeal MA14-12 by issuing Order MO-3212 in which, among other things, he upheld the city’s searches for responsive records as reasonable.

[5]  Appeal MA14-12-2 then proceeded to mediation. During mediation, the city indicated that its back-up computer tapes are not part of an email storage system, but are part of its disaster recovery system for all electronically-held records. It advised the mediator that the tapes do not contain only emails, but also business data. The city also indicated that the records on the tapes contain business information, but no personal information and, therefore, section 6 of Regulation 823 applied.

[6]  The appeal then moved to the adjudication stage of the appeals process, where an adjudicator conducts an inquiry. I sought and received representations from the city and the appellant, which were shared in accordance with this office’s Practice Direction 7.

[7]  For the reasons that follow, I uphold the city’s fee estimate and its denial of a fee waiver, and dismiss the appeal.

ISSUES:

1. Should the fee estimate be upheld?
2. Should the fee be waived?

DISCUSSION:

Issue A.  Should the fee estimate be upheld?

[8]  Where a fee exceeds $25.00, an institution must provide the requester with a fee estimate. Where the fee is $100.00 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. [1]

[9]  The purpose of the 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. [2] The fee estimate also assists requesters to decide whether to narrow the scope of a request in order to reduce the fees. [3]

[10]  In all cases, the institution must include a detailed breakdown of the fee, and a detailed statement as to how the fee was calculated. [4] 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 below.

[11]  Section 45(1) requires an institution to charge fees for requests under the Act . That section states:

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.

[12]  A more specific provision regarding fees is found in section 6 of Regulation 823, which states:

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-ROM’s, $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.

[13]  The city submits that there may be responsive records located in its back-up tapes, but that the city generally does not conduct searches on these tapes because their sole function is to be available for disaster recovery purposes. The tapes are not a records management or a document management storage system. The city also argues that, without restoring the tapes, any records that may be held on these tapes cannot be identified upon a reasonable effort by an experienced employee. The city advises that the process required to retrieve any responsive records that may be on these back-up tapes involves restoring the tapes, rebuilding the relevant email accounts, and then isolating specific records responsive to the access request. The city states that an appeal involving identical circumstances with respect to a fee estimate was upheld by this office in Order MO-3079. In that appeal, the city described the steps required to restore the back-up tapes as follows:

• The email team determines the amount of disk space required, identifies the server name of the post office to be restored and initiates a restore request to Information and Technology Operations;
• Staff of Information and Technology Operations determine which tapes are to be recalled and submit a recall request to the off-site storage facility;
• The requested tapes are located as are available tape drives. Tapes are loaded and the process to switch them from back-up tapes is monitored. Tape drives are restored to the appropriate disk location; and
• After tape restoration, staff of the email team rebuild the database to allow access to the restored mailbox offline and to grant appropriate access rights for the individuals designated to carry out the search.

[14]  The city further submits that once the email accounts are restored, divisional staff would then need to perform further searches to determine if any responsive records exist. It goes on to state that until that time, it is not possible for city staff to know if the accounts contain any responsive records. It argues that staff cannot catalogue the tapes and only restore those that may identify responsive records. In other words, all of the tapes covering the timeframe of the request must be restored. As previously stated, the city estimates the time to restore the tapes is 8 hours per tape. As there are 24 tapes, the search time is 192 hours. At the rate of $30 per hour, the cost to restore the tapes is $5760.

[15]  The city also states that the appellant has suggested that it should outsource the tape restoration to a private facility. The city argues that the appellant has not provided any evidence that doing so would take less time and/or cost less money. In addition, the city does not provide tapes such as these to a third party, due to privacy concerns and the fact that the tapes are used for disaster recovery purposes.

[16]  The appellant submits that the city has mishandled his access request and orchestrated the fee estimate to strengthen its submissions on reasonable search in appeal MA14-12. The appellant also asserts that the fee estimate was an attempt by the city to conceal the fact that it had prevented the appellant from making an informed decision about pursuing access. The appellant argues that the fee estimate should be disallowed or waived, as it would be fair and equitable to do so, given the length of time that has passed since the initial request and the manner in which the city dealt it. The appellant states that when the city issued the fee estimate, it did not suggest to him that he could narrow the scope of his request. The appellant states:

It is unjust, unfair and offends the principles of access to information to allow the City to require [the appellant] to pay the City to complete its reasonable search. By permitting the City to rely on the Fee Estimate, issued nearly 10 months after the access process began, the IPC is condoning the City’s strategic course of conduct. This course of conduct prevents [the appellant] from making an informed decision to pursue access and its contrary to public policy. . .

[17]  With respect to the back-up tapes, the appellant submits that institutions are required to have reasonable measures in place to preserve records in their custody or control in accordance with record-keeping and retention requirements, and rules or policies that apply to them. The requirement to retain and preserve records in an accessible manner means that the records can be retrieved within a reasonable time, and that the records are in a format which allows their contents to be readily ascertained by a person inspecting them. [5] The appellant argues that the process the city relies on to restore the back-up tapes offends its own requirements for accessible record keeping.

[18]  Further, the appellant submits that in Order MO-2727, this office held that evidence relating to searching for responsive records was too general and, accordingly, disallowed the search fee. In addition, the appellant relies on Order MO-2358, in which this office found that an institution was wrong to charge fees for records that should have been readily available. The appellant argues that in this appeal, the city’s representations are unsupported by affidavit evidence and rely on Order MO-3079, which does not arise from the same circumstances. Further, the appellant raises Order MO-2696, in which the fee associated with the institution developing a computer program to conduct quality control assurance testing to locate, extract and compile responsive records was not upheld, and that similarly, the fee in this appeal for restoring back-up tapes should not be upheld.

[19]  The appellant suggests that the restoration of the back-up tapes could be done on a piecemeal basis, year-by-year. For example, the appellant states, after each year is restored, the city could provide the appellant with an access decision related to the records that have been restored. In turn, the appellant could decide whether he wishes to proceed with the restoration of additional tapes. In other words, the appellant submits, the city could restore a representative sample of the records as required by the legislation.

[20]  In addition, the appellant states that he is likely not the only requester to seek information from the city for this time period (2007 to 2011), and the city would benefit from an index of records contained on those back-up tapes in order to respond to other access requests. The appellant argues that the fee estimate is a burden created by the city’s futile records management system and is not a financial burden that should be placed on him, or any other requester.

[21]  In reply, the city states that the reason it issued a fee estimate regarding the back-up tapes was because the appellant continued to assert in appeal MA14-12 that further records must exist, despite the city’s position that it had provided all responsive records to him in response to that access request.

[22]  With respect to the appellant’s position that he was not given the opportunity to narrow the request, the city argues that he was provided with the name and contact information of its Access and Privacy Officer if he wished to discuss any aspect of the fee estimate, which would include narrowing the request. The city goes on to state that the appellant is free to narrow the scope of the request at any time including during this inquiry, which would decrease the number of back-up tapes requiring restoration, resulting in a lower fee estimate.

[23]  The city also argues that the orders the appellant is relying on to support his position are not applicable in these circumstances. For example, in Order MO-2727, the city states that the search time fee was not upheld because the institution was not specifically charging the fee for search activities. In Order MO-2358, a school board charged fees for search time for records regarding a child’s grade 4 curriculum that was to be completed while she was out of the country. The adjudicator concluded that, in those circumstances, informal sharing should have been the norm, and disallowed the fee. As well, in Order MO-2696, the city states that the adjudicator denied a school board’s fee estimate for the costs to create and test a computer program to find copies of emails being requested because the adjudicator did not believe that the most reasonable way to search for the emails was to create a computer program, test it, then do quality assurance on the new program. The city argues that the circumstances of these orders do not pertain to this appeal or to the circumstances described in Order MO-3079, on which it relies.

[24]  In response, the appellant states that the city failed to mention the back-up tapes in its initial decision letter, as well as its supplementary decision letter and only raised the tapes during the adjudication of appeal MA14-12. The appellant submits that the city’s conduct has caused his access request to proceed in an unjust, inefficient, costly and bifurcated manner, as the city has waited until the adjudication stage to raise issues that he should have been notified about in its initial response. The appellant states that he had to appeal the city’s original decisions and incur significant expense prior to the issuance of the fee estimate in order to pursue access to records. In addition, the appellant submits that the city should not be permitted to abdicate any responsibility for identifying the need to narrow the request. Lastly, the appellant reiterates that the restoration of the back-up tapes would benefit every requester seeking access to records from 2007-2011, and that charging him is an improper use of the fee estimate process.

[25]  The issue to be considered is whether the city’s fee estimate is reasonable, taking into consideration the breadth of the appellant’s request, and the provisions in section 45(1)  of the Act . The city bears the burden of establishing the reasonableness of a fee estimate, and must provide detailed information and evidence as to how the fee estimate was calculated in accordance with section 45(1).

[26]  As previously stated, section 45(1) requires an institution to charge fees for requests made under the Act , including the costs of every hour of search required to locate a record. I am satisfied and find that the steps described by the city in its fee estimate are solely related to its search for responsive records that may be located in the back-up tapes. In this case, the search involves restoring the tapes, re-building email accounts and retrieving any responsive records. I note that this process to conduct a search is above and beyond the searches that the city conducted for responsive records in its Building Department, Heritage Preservation Services and Planning Department, which were the subject matter of appeal MA14-12, and were upheld in Order MO-3212. [6]

[27]  The city has relied on Order MO-3079 to support its position, claiming that the circumstances involving the search for responsive records in that appeal were identical to those in this appeal. In the appeal giving rise to Order MO-3079, the city received a request for access to emails or correspondence between a former TTC Chair and named former Mayors of the city. The city issued a fee estimate that included the cost of restoring back-up email tapes. The city described the steps to be taken in order to restore the tapes, which are virtually identical to those described by the city in this appeal. The city also estimated that it would take 8 hours to restore each tape, which is the same basis for the fee estimated by the city in this case.

[28]  In that order, Assistant Commissioner Sherry Liang upheld the city’s fee estimate and in doing so, stated:

In Order MO-2492, this office upheld the time required to extract emails from backup databases as search time for which an institution is entitled to charge a fee under section 45(1) (a) of the Act . This office has also stated that time spent by an individual in running reports from a computer system is covered by section 45(1)(b). In this appeal, the work detailed by the city could fall under either of these subsections.

As stated above, the purpose of a fee estimate is to provide the requester with sufficient information to make an informed decision on whether or not to pay the fee and pursue access to the requested records. In the current appeal, the city’s fee estimate was based on the advice of staff who are familiar with the type and content of the records. Its time was charged at the rate prescribed by the Act of $7.50 for each 15 minutes spent by any person, or $30.00 per hour.

[29]  Further, Assistant Commissioner Liang noted that the city set out who was responsible for the task of restoring the email account, what actions were required in order to restore the account, and a breakdown of the estimate to identify how much time a staff member must spend performing the restoration tasks, and was satisfied that these tasks were necessary in order to search for records responsive to the appellant’s request.

[30]  Given that the steps the city describes in order to restore the back-up tapes is identical to those in the appeal giving rise to Order MO-3079, I adopt the approach taken by Assistant Commissioner Liang, and apply it to the circumstances of the request in this appeal. I am satisfied with the city’s evidence that it would take eight hours to restore each of the backup tapes. Given that there are 24 tapes, the fee estimate provided by the city is accurate and in accordance with the fee provisions set out in section 45(1)(a) and in section 6 of Regulation 823. Consequently, I uphold the city’s fee estimate.

[31]  The appellant’ s position is that the fee should be disallowed because the city did not raise the issue of searching the back-up tapes until the inquiry stage of appeal MA14-12, which had resulted in him incurring legal and filing costs. I do not accept this argument. The appeal in MA14-12 was not related solely to the issue of reasonable search, but also to the application of the discretionary exemptions in sections 12 and 38(a) that the city had claimed to withhold certain records. These exemptions remained at issue until the conclusion of the inquiry, including in a subsequent reconsideration request that the appellant made to the adjudicator.

[32]   I also note that the city has indicated that the appellant is free to narrow the scope of his request, which would narrow both the breadth of the search and the resulting fee estimate. This is an option that the appellant may wish to explore with the city.

Issue B.  Should the fee be waived?

Part 1: basis for a fee waiver

[33]  Section 45(4)  of the Act  requires an institution to waive fees, in whole or in part, in certain circumstances. Section 8 of Regulation 823 sets out additional matters for a head to consider in deciding whether to waive a fee. Those provisions state:

45. (4) A head shall waive the payment of all or any part of an amount required to be paid under subsection (1) if, in the head’s opinion, it is fair and equitable to do so after considering,

(a) the extent to which the actual cost of processing, collecting and copying the record varies from the amount of payment required by subsection (1);

(b) whether the payment will cause a financial hardship for the person requesting the record;

(c) whether dissemination of the record will benefit public health or safety; and

(d) any other matter prescribed by the regulations.

8. The following are prescribed as matters for a head to consider in deciding whether to waive all or part of a payment required to be made under the Act :

1. Whether the person requesting access to the record is given access to it.

2. If the amount of a payment would be $5 of less, whether the amount of the payment is too small to justify requiring payment.

[34]  The fee provisions in the Act  establish a user-pay principle which is founded on the premise that requester should be expected to carry at least a portion of the cost of processing a request unless is it fair and equitable that they do not do so. The fees referred to in section 45(1) and outlined in section 8 of Regulation 823 are mandatory unless the requester can present a persuasive argument that a fee waiver is justified on the basis that it is fair and equitable to grant it or the Act  requires the institution to waive the fees. [7] In other words, the appellant bears the burden of establishing the basis for the fee waiver under section 45(4) and must justify the waiver request by demonstrating that the criteria for a fee waiver are present in the circumstances. [8]

[35]  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. This office may review the institution’s decision to deny a request for a fee waiver, in whole or in part, and may uphold or modify the institution’s decision. [9]

[36]  There are two parts to a review of the city’s decision under section 45(4). First, I must determine whether the appellant has established the basis for a fee waiver under the criteria listed in section 45(4). If I find that a basis has been established, I must then determine whether it would be fair and equitable for the fee, or part of it, to be waived. [10]

[37]  Concerning the basis for a fee waiver, the city submits that:

• The actual cost of restoring and searching the back-up tapes exceeds the amount of payment required by the appellant, given the additional staff time required outside of the previously referred to tasks to restore the tapes;
• The appellant has not provided any documentation to support a claim that the payment of the fee would cause a financial hardship, other than referring to the legal fees he has incurred to make representations to this office, as well as the filing and legal fees relating to appeal MA14-12;
• None of the other factors listed support waiving this fee; and
• The city does not know whether the appellant will be given access to the records, because it has no way of knowing what information would be on the restored email account until the back-up tapes are restored.

[38]  The appellant submits that the actual cost to restore the back-up tapes is not accurately represented by the fee estimate, and that there is no guarantee that he will be granted access to any of the restored records.

[39]  I find that the appellant has not met the onus of establishing that the criteria listed in section 45(4) are met in the circumstances of this appeal. The appellant has not provided evidence that the actual cost of searching for the records is lower than the cost set out in the fee estimate. In addition, the appellant has not provided the type of evidence required, nor has he raised, that the payment of the fee will cause him financial hardship, or that dissemination of the record will benefit public health or safety.

[40]  Consequently, as I find that the appellant has not provided sufficient evidence to establish the basis for a fee waiver as set out in section 45(4), it is not necessary for me to consider whether it would be fair and equitable to waive the fee. However, given the appellant’s argument that, in the particular circumstances of this appeal, it would be fair and equitable to waive the fee, I will go on to consider that issue.

Part 2: fair and equitable

[41]  For a fee waiver to be granted under section 45(4), it must be fair and equitable in the circumstances. Relevant factors in deciding whether or not a fee waiver is fair and equitable may include:

• The manner in which the institution responded to the request;
• Whether the institution worked constructively with the requester to narrow and/or clarify the request;
• Whether the institution provided any records to the requester free of charge;
• Whether the requester worked constructively with the institution to narrow the scope of the request;
• Whether the request involves a large number of records;
• Whether the requester 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. [11]

[42]  Concerning whether it is fair and equitable to grant the fee waiver in the circumstances, the city states that the appellant has already received copies of all responsive city records that were contained in existing and retrievable paper or electronic files. With regard to the portion of the request for which the back-up tapes (which are not designed for archiving emails) would need to be restored, the city states that the appellant has not narrowed the request in any manner, and is, in fact, asking the city to carry out an onerous and lengthy search of what is essentially a disaster recovery tape back-up system covering years, without paying the fee for such an extraordinary search.

[43]  The city goes on to argue that granting the fee waiver would not be fair or equitable because requiring staff to take time away from their core functions to locate records at no cost would shift an unreasonable burden from the appellant to the city and its taxpayers.

[44]  The appellant submits that it is fair and equitable in these circumstances to waive the fee. The appellant states that the obligation regarding a fee waiver starts at the request processing stage. [12] Had the appellant been given the benefit of the fee estimate at the outset of the request process, he could have made an informed decision about whether to proceed with the appeal in MA14-12 (the search appeal) or to pay the fee estimate. Instead, due to the city’s almost ten-month delay in issuing the fee estimate, the appellant was forced to initiate and pursue appeal MA14-12, and to subsequently address the fee estimate in this appeal. The appellant argues that the city’s mishandling of the access request caused him to double his efforts and expenses.

[45]  Further, the appellant states that the city did not recommend that he narrow the request, nor did it suggest that was possible, but that it now blames him for not narrowing the request. The appellant states:

Although the Act contemplates a user pay principle, it is nevertheless important that the IPC holds institutions accountable in circumstances where the fees are being used as a deterrent or barriers to access. Since this access request began, the City has intentionally provided [the appellant] with incomplete information to assess whether additional records exist. The City informed [the appellant] that additional records may exist on back-up tapes as an unjust and inequitable attempt, 10 months after the process started, to strengthen its submissions on the reasonable search issue. [The appellant’s] search for the truth should not by stymied by the City’s improper and untimely use of a fee estimate.

[46]  In reply, the city states that during the preparation of its representations in appeal MA14-12, for which reasonable search was an issue, it was noted that the only other place that any records might conceivably be found was in the disaster recovery back-up tapes. The city goes on to state that in view of the appellant’s claim that further records existed, beyond those already disclosed to him, the city advised the appellant of the existence of the back-up tapes and issued the fee estimate. The city states:

Furthermore, as email records prior to mid-2011 had been retained and filed appropriately by Heritage Preservation Services staff, and had been provided to the appellant, there was no need to restore the back-up tapes.

. . .

As the appellant continued to insist that other records must exist, the City issued a fee estimate for the restoration of the back-up tapes even though the City was confident that all records had been provided to the appellant, including those same records that would be contained on the back-up tapes.

[47]  In response, the appellant submits that waiving the fee for restoring the back-up tapes would not shift the burden of costs from the him to the city because the restoration of the back-up tapes would benefit every requester seeking access to records from 2007 to 2011. Lastly, the appellant argues that the orders he has referred to support this office’s prior position that the costs associated with the internal review of records, the sharing of records and the process of retrieving records should not be downloaded to the requester.

[48]  Based on the circumstances of the appellant’s request and the representations provided by the parties, I find that it would not be fair and equitable to waive the fee.

[49]  In my view, neither the appellant nor the city worked with each other in a constructive manner to narrow the request, and the city should have provided the fee estimate much sooner in the process than it did. However, the city did respond to the appellant’s request by locating a number of records from its available electronic and hard copy holdings and by providing partial disclosure of those records, and subsequently prepared the fee estimate (which I have upheld) with regard to the restoration of the back-up tapes, which may contain responsive records. Despite the fact that the length of time the city took to prepare the fee estimate resulted in inconvenience to the appellant, I find that inconvenience does not justify shifting the burden of the cost from the appellant to the city. Consequently, I uphold the city’s decision to deny the fee waiver.

ORDER:

I uphold the city’s fee estimate and its decision to deny a fee waiver. The appeal is dismissed.

Original Signed By:		October 11, 2016
Cathy Hamilton
Adjudicator