ORDER MO-4650

Appeal MA23-00885

Hydro Ottawa Limited

April 30, 2025

Summary: A media requester appealed a fee estimate of Hydro Ottawa Limited for access to records about services retained during a strike of electrical workers. The requester made a request for access to these records under the Municipal Freedom of Information and Protection of Privacy Act .

In this order, the adjudicator upholds the portion of Hydro’s fee estimate related to searching for and photocopying the records but reduces the portion of the fee estimate related to the fees for preparing the records for disclosure.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56, section 45(1) ; R.R.O. 1990, Reg. 823, sections 6, 7 and 8.

OVERVIEW:

[1] A media requester appealed a fee estimate for access to records about services retained during a strike of electrical workers.

[2] Hydro Ottawa Limited (Hydro) received the following request under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA or the Act):

From May 1, 2023, to October 17, 2023, all documents, records, files and correspondence including electronic communications, data and invoices, excluding records already made public, regarding [named company] and its subsidiaries, [and five other companies].

[3] Hydro identified responsive records and issued a fee estimate of $669,761.90. It provided a breakdown of the fee as follows:

Breakdown of the fee Estimate Issued by Hydro

Category	Amount	Charge	Subtotal
Search Time	10 hours	$30.00/hour	$300.00
Preparation Time	18,047.17 hours	$30.00/hour	$541,415.10
Photocopying	640,234 pages	$0.20/page	$128,046.80
		TOTAL	$669,761.90

[4] Hydro also advised that, in accordance with section 7 of Ontario Regulation 823, it required a deposit of 50% or $334,880.95 before continuing to process the request.

[5] The requester (now the appellant) appealed Hydro’s fee estimate to the Information and Privacy Commissioner of Ontario (the IPC).

[6] As mediation did not resolve the appeal, it was transferred to adjudication. I sought and received the parties’ representations.

[7] In this order, I uphold Hydro’s fee estimate for search time and for photocopying the records, but I order Hydro to reduce the portion of its fee estimate for preparing the records for disclosure.

DISCUSSION:

[8] The sole issue in this appeal is whether the IPC should uphold Hydro’s fee estimate of $669,761.90.

[9] Institutions are required to charge fees for requests for information under the Act. Section 45 governs fees charged by institutions to process requests.

[10] Under section 45(3), an institution must provide a fee estimate where the fee is more than $25. The purpose of the fee estimate is to give the requester enough information to make an informed decision on whether or not to pay the fee and pursue access.[1] The fee estimate also helps requesters decide whether to narrow the scope of a request to reduce the fee.[2]

[11] The institution can require the requester to pay the fee before giving them access to the record.[3] If the estimate is $100 or more, the institution may require the person to pay a deposit of 50 per cent of the estimate before it takes steps to process the request.[4]

[12] Where the fee is $100 or more, the fee estimate can 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.[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]

[14] The IPC can review an institution’s fee and can decide whether it complies with the Act and regulations.

[15] Section 45(1) sets out the items for which an institution is required to charge a fee:

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.

[16] More specific fee provisions are found in sections 6 of Regulation 823, which applies to general access requests:

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.

Representations

[17] Hydro states that, over the period of time relevant to the request,[7] it was engaged in collective bargaining with the union representing its employees. Bargaining reached an impasse, and the union commenced legal strike action on June 28, 2023. The strike continued until September 20, 2023, when the parties ratified a new collective agreement. Hydro states that the third party entities identified in the request include multiple contractors which Hydro retained in order to continue to deliver essential public services during the strike, as well as a security contractor retained to provide picket line security.

[18] Hydro states that the volume of records created in relation to these contractors over the course of the strike is “simply enormous” and the requester seeks all of these records. Hydro states that it searched for and located a large volume of responsive records. It submits that after conducting an analysis of a sample of the located records, it issued a fee estimate of $669,761.90.

[19] Hydro states that it keeps records digitally using Google services and that searches of its records can be conducted using a software called “Google Vault” which allows Hydro to search the majority of its electronic files. It states that it calculated the fee estimate by searching through Google Vault for records using key words contained in the request.

[20] Hydro submits that the search terms it used to identify records responsive to the request included various abbreviations and variations of the names of the companies named in the request. Hydro submits that 39 employee accounts were searched in total, representing the employees who Hydro concluded were likely to have possession of responsive records. Hydro states that the records that were identified as being likely responsive to the request were organized by file type.

[21] Hydro states that the search for responsive records was relatively straightforward. It states that the fee estimate includes 10 hours of search time, which is the actual search time it required to gather the responsive records, and not an estimate. At $30 per hour, in accordance with section 6 of Regulation 823, Hydro submits that it calculated a total of $300 in search fees.

[22] Hydro states that, based on the results of the search, 20,271 emails, 3,409 electronic documents of various types from Google Drive, 95 chat files, and 790 financial planning and management software (ERP)[8] files were identified as likely responsive to the request.

[23] Hydro submits that to identify a representative sample of the records to prepare its fee estimate it selected ten emails from each of eight employees. For its ERP files, it identified a sample of eight files from the responsive records. For other file types (Drive documents, and chat files) it chose a sample of ten files. Hydro states that it then reviewed the sample files and extrapolated from the time required to review those records to estimate the time required to prepare all of the responsive records for disclosure. With its representations, Hydro provided a spreadsheet detailing the calculation method it used, and the results.

[24] Hydro submits that by multiplying the average number of pages of each file type (emails, Drive, chat files, and ERP files) taken from the sample, by the number of total records located of that type of file, Hydro calculated its estimated count of pages responsive to the request. Based on its review of the sample records, Hydro estimated that 324,336 pages of emails and attachments to those emails, 314,310 pages of Drive documents, 304 pages of chats, and 1,284 pages of ERP files were responsive records contained in the greater set of records caught by the search. Hydro noted that emails in the sample often contained additional attachments which were also included in the total page count of the sample.

[25] Hydro therefore estimated that the records identified as responsive came to a total of 640,234 pages across all file types. Hydro determined that it was not reasonably possible to undertake the work necessary to respond to the request without first providing a fee estimate and requesting a deposit of half the amount in accordance with section 45(3) of the Act and section 7(1) of Regulation 823.

[26] Given that Hydro estimated 640,234 pages of responsive records, it estimated that it would be required to charge $128,046.80 in photocopying fees in accordance with the amount of $0.20 per page set out in Regulation 823.

[27] Regarding preparing the records for disclosure, Hydro identified that it would be required to sever many of the records in order to withhold information exempt and/or excluded from disclosure under the Act. Hydro used the same sample of records detailed above to determine its fee estimate for preparation time.

[28] After establishing the total number of pages through an extrapolation of the average page counts across the sample, reviewing the sample records Hydro determined the estimated number of pages of each file type that would require redaction. It submits that it used the sample records to establish an average proportion of the total pages of responsive records of each file type that would require severance or redaction. Hydro submits that it found that 88% of emails, 81% of Drive documents, 41% of chat files, and 100% of ERP files would require redactions to withhold information exempt from disclosure and/or excluded from the Act.

[29] Using the generally accepted estimate of two minutes per page to sever a record requiring multiple severances,[9] Hydro calculated a total cost estimate reflecting the total time that it would take to sever the records if all pages required redactions. Hydro then reduced this total time proportionally to reflect the percentage of files that were estimated as requiring redaction on the basis of Hydro’s examination of the sample records.

[30] On this basis, Hydro estimated that it would take a total of 18,047.17 hours to prepare all responsive records for disclosure by applying severances. In accordance with the Act and Regulation 823, at $30 per hour, this led to a subtotal estimated cost of $541,415.10 for preparing the records for disclosure.

[31] Based on the sample of records and the subject matter of the request, Hydro estimates that portions of many of these records will be exempt and/or excluded from disclosure on various grounds. Specifically, it submits:

• Many records were likely collected, prepared, maintained or used by or on behalf of Hydro Ottawa in relation to negotiations or anticipated negotiations relating to labour relations between Hydro Ottawa and the Union, and/or in relation to meetings, consultations, discussions or communications about labour relations in which Hydro Ottawa has an interest, and are therefore excluded from the Act under section 52(3).
• Many of the records and/or portions thereof were subject to solicitor-client privilege, and/or were prepared by or for counsel employed or retained by Hydro Ottawa for use in giving legal advice or in litigation and are therefore exempt from disclosure under section 12  of the Act.
• Many of the records include confidential third party information within the meaning of section 10  of the Act, disclosure of which could reasonably be expected to give rise to the harms set out in that section. For example, the contractors may have supplied confidential commercial information to Hydro Ottawa in the course of negotiating their agreements to provide services to Hydro Ottawa which would prejudice their competitive position if disclosed.
• Many of the records or portions thereof if disclosed would reveal advice or recommendations of an officer or employee of Hydro Ottawa or a consultant retained by Hydro Ottawa and are therefore exempt from disclosure pursuant to section 7  of the Act.
• Many of the records or portions thereof include information the disclosure of which could reasonably be expected to prejudice the economic interests of Hydro Ottawa, and/or be injurious to the financial interests of Hydro Ottawa under section 18(1)  of the Act. For example, the information contained in the records would provide insight into Hydro Ottawa contingency plans for continued operation in the face of significant labour disruptions. Disclosure of this information would put Hydro Ottawa at a disadvantage in future rounds of negotiations with the union and render it more vulnerable to future labour disruptions.

[32] The appellant states that Hydro correctly notes that his request covers documents created over the 118 business days that coincide with the 83-day strike and that they concern Hydro’s business with six contractors retained to deliver essential public services during the strike as well as a security contractor retained to provide picket line security.

[33] The appellant does not specifically challenge the specific items in Hydro’s fee estimate but submits generally that he finds it unreasonable that Hydro could have produced so many responsive pages of records over a 118-business day period related to an 83-day strike.

[34] In his representations, the appellant asked for the first time, to be granted a fee waiver under section 45(4) (b) and 45(4) (c) of the Act[10] on the basis of financial hardship in paying the fee and on the basis of public safety.

[35] In reply, Hydro maintains that its fee estimate is based on a sample of records and was properly calculate in accordance with the Act and Regulation 823. It submits that the size of the fee reflects the large number of records identified as responsive and is a result of the broad scope of the appellant’s request.

[36] Hydro submits that the appellant’s request for a fee waiver is not properly part of this appeal as it was not the subject of the original appeal nor the mediation in this appeal. Nevertheless, Hydro provided representations in reply to those of the appellant as to why it would deny a fee waiver in this case.

Analysis and findings

[37] For the reasons set out below, I find that the portions of Hydro’s fee estimate that set out fees for searching and photocopying the records are reasonable. However, I find that the portion of Hydro’s fee estimate for preparing the records for disclosure is not reasonable and I will order Hydro to reduce it.

[38] In accordance with section 45(3)  of the Act, Hydro provided the appellant with a fee estimate in response to his request. A fee estimate is meant to give requesters sufficient information to make an informed decision on whether or not to pay the fee and pursue access[11] and to assist them in deciding whether to narrow the scope of a request in order to reduce the fees.

[39] As set out above, the fee estimate Hydro provided to the appellant is summarized in the following table:

Summary of the fee Estimate Hydro Provided to the Appellant

Category	Amount	Charge	Subtotal
Search Time	10 hours	$30.00/hour	$300.00
Preparation Time	18,047.17 hours	$30.00/hour	$541,415.10
Photocopying	640,234 pages	$0.20/page	$128,046.80
		TOTAL	$669,761.90

[40] Hydro provided representations on how it calculated its fee estimate. From its representations, it is clear that, with the exception of the portion that details preparation time, Hydro has complied with the provisions of the Act and Regulation 823, as well as the accepted practices. As such, it has based its fee estimate on its review of a representative sample of the records and the advice of an individual who is familiar with the type and content of the records.[12]

Fee estimate for search time

[41] Under section 45(1)(a) and Regulation 823, time for manually searching a record can only be charged for general requests (which is the case here), not requests for the requester’s own personal information.[13]

[42] Hydro’s fee estimate for records responsive to the current request includes $300 for 10 hours of actual search time. It submits that it searched through Google Vault for records using various abbreviations and variations of the names of the companies named in the request. Hydro also submits that it searched 39 employee accounts, representing the employees who Hydro concluded were likely to have possession of responsive records.

[43] I agree with Hydro that its fee estimate for 10 hours of search time was properly calculated at $30 per hour, in accordance with section 6 of Regulation 823. The appellant has not specifically challenged this $300 search fee and I find that, given the breadth and scope of the request and the actions required to locate the responsive records, 10 hours to search for responsive records is reasonable. Accordingly, I will uphold Hydro’s $300 search fee.

Fee estimate for photocopying the records

[44] The Act and Regulation 823 permit an institution to charge fees for:

• photocopies and computer printouts;[14]
• records provided on CD-ROMs;[15]

[45] I find that the estimated 640,234 pages of responsive records as being the number of pages of records located during the search is reasonable, given the breadth of the request. Considering that the estimated 640,234 pages of responsive records is reasonable, I find that the estimated fee of $128,046.80 for photocopying of these pages is in compliance with paragraph 1 of section 6 of Regulation 823 which permits a photocopy charge of $0.20 per page.

[46] Therefore, I find that Hydro‘s fee estimate of $128,046.80 for photocopying the records is in compliance with the Act and Regulation 823 and I uphold it.

Fee estimate for preparing the records for disclosure

[47] Under section 45(1)(b) and Regulation 823, an institution can charge for time spent:

• severing (redacting) a record, including records in audio or visual format,[16] and
• running reports from a computer system.[17]

[48] The IPC has generally accepted that it takes two minutes to sever a page that requires multiple severances.[18]

An institution cannot charge for time spent on:

• deciding whether or not to claim an exemption;[19]

• identifying records requiring severing;[20]

• identifying and preparing records requiring third party notice;[21]

• removing paper clips, tape and staples and packaging records for shipment;[22]

• transporting records to the mailroom or arranging for courier service;[23]

• assembling information and proofing data;[24]

• photocopying;[25]

• preparing an index of records or a decision letter;[26] or

• re-filing and restoring records to their original state after they have been reviewed and copied.[27]

[49] Through its search, Hydro located and identified 20,271 emails, 3,409 electronic documents of various types from Google Drive, 95 chat files, and 790 ERP[28] files as likely responsive to the request, which amounts to 640,234 pages of records. Hydro estimates that it requires 18,047.17 hours to apply severances to the records to prepare them for disclosure. I find that this preparation fee estimate, although taking into account the allowable preparation time under the Act and Regulation 823 at $30 per hour for severing the records for disclosure, is not reasonable.

[50] Based on its representative sample of the records Hydro estimates that of the responsive records 88% of emails, 81% of Drive documents, 41% of chat files, and 100% of ERP files will require redactions in order to withhold information which is exempt from disclosure and/or excluded from the Act. Therefore, out of the 640,234 total pages of records estimated to be responsive to the appellant’s request, Hydro estimates that it will need to apply multiple severances to 84.5% of these 640,234 pages or 541,415 of these pages

[51] As I explain below, based on the wording of the request and Hydro’s representations, I do not accept that such a high percentage of pages for each type of file will require multiple severances. Therefore, I find that Hydro’s estimated preparation fee is excessive and not reasonable.

[52] In making this finding, I have considered Hydro’s representations that it arrived at the preparation fee by using a representative sample of records, consisting of ten emails from each of eight employees, eight ERP files and ten other file types (Drive documents, and chat files). I have also considered the details it provided about this representative sample with its representations.

[53] I find that Hydro has provided insufficient evidence that such a high percentage of the 640,234 pages of records would require severing. I base this finding on the fact that Hydro reviewed a very limited number of files as its representative sample of records considering the total number of pages of responsive records and the actual exemptions and exclusion it anticipates applying to them. I also note that Hydro has not sufficiently explained why each of the 541,415 pages that it submits require severances needs multiple severances. IPC has accepted that it takes two minutes to sever a page that requires multiple severances.[29]

[54] Taking into account Hydro’s estimated preparation fee for each file type, it has assumed that 84.5% of the pages of responsive records should be allowed two minutes of preparation time. In doing so, it did not consider that the preparation time of two minutes to sever a page only applies to the pages with multiple redactions. Also, Hydro has not indicated why 100% (or close to that amount) of certain types of files will need to be severed.

[55] I accept that, given the volume of records and the number of potential exemptions and exclusions that may apply to them, a significant amount of time and effort is necessary to prepare the records for disclosure.[30] However, I find that Hydro’s fee estimate for preparing the records for disclosure is not reasonable in the circumstances of this appeal. By assuming that 84.5% of the pages need to be redacted and that each page that requires redaction will require multiple redactions to allow for two minute per page of time, in my view, Hydro has provided an excessive preparation fee.

[56] Accordingly, taking into account the wording of the request and the parties’ representations, I do not uphold two minutes per page of preparation time under section 45(1) (b) of the Act, which amounts to 18,047.17 hours at a fee of $30 per hour, for a total of $541,415.10.

[57] Based on the wording of the request and the types of responsive records, as well as the anticipated exemptions and exclusion that Hydro submits would apply, I find that only 25% of the pages, not the estimated 84.5% of the pages, would require multiple severances is a reasonable estimation in the circumstances. There are 640,234 pages in total. Twenty-five percent of these pages would be 160,058 pages. At two minutes per page for these 160,058 pages, the total estimated preparation time would be 5,334.93 hours. At $30 per hour, the estimated preparation fee would be reduced to $160,047.90.

[58] In making this finding, I have taken into account Hydro’s relatively small representative sample, and its estimation that all of the estimated 541,415 pages that require severance would require multiple severances. As well, I have considered that although Hydro has located the responsive records, it has not provided details, or an index of records, as to what these records consist of other than generally referring to them as “emails, Drive, Chat, and ERP”.

[59] Furthermore, in not providing details about the actual records located, I find that Hydro’s general description of the records does not support its claim that almost all of them would require such extensive severing.

Fee waiver

[60] As indicated above, in his representations, the appellant requested, for the first time, that he be provided a fee waiver. The appellant did not request a fee waiver on receipt of Hydro’s fee estimate, nor did he raise the issue of fee waiver during the mediation stage of the appeal process. However, I note that, in its decision letter, Hydro did not advise the appellant that he could seek a fee waiver.

[61] The fee provisions in the Act establish a “user-pay” principle. The fees referred to in section 45(1) and outlined in sections 6 and 6.1 of Regulation 823 are mandatory unless the requester can show that they should be waived.[31]

[62] The Act requires an institution to waive fees, in whole or in part, if it is fair and equitable to do so. Section 45(4) of the Act and section 8 of Regulation 823 set out matters the institution must 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 the 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 or less, whether the amount of the payment is too small to justify requiring payment.

[63] The appellant submits that he seeks a fee waiver based on financial hardship (section 45(4)(b)), as he cannot afford to pay the high fee. He also submits that he seeks a waiver on the basis of public safety (section 45(4)(c)), as there were safety concerns because of the use of replacement workers during the 83-day 2023 strike referred to above.

[64] A fee must be waived by an institution, in whole or in part, if it would be “fair and equitable” to do so in the circumstances.[32]

Section 45(5)  of the Act provides that:

A person who is required to pay a fee under subsection (1) may ask the Commissioner to review the amount of the fee or the head’s decision not to waive the fee.

[65] A requester must first ask the institution for a fee waiver and provide detailed information to support the request. If the institution either denies this request or chooses to waive only a portion of the fee, the IPC may review the institution’s decision and can uphold or modify the institution’s decision.[33]

[66] In this case, the appellant did not ask Hydro for a fee waiver first. Therefore, the IPC can only review the Hydro’s decision not to issue a fee waiver. As such, the appellant must raise his request for a fee waiver with Hydro, not with the IPC, as is the case here.

[67] However, nothing in this order precludes the appellant from seeking a fee waiver directly from Hydro. As stated above, Hydro did not advise the appellant of his ability to do so in its decision letter.

[68] As indicated in the IPC’s Guidance Document “Fees, Fee Estimates and Fee Waivers”, there is certain information that an institution should provide a requester in a fee or fee estimate decision letter, as follows:

An institution’s obligation to waive the fee starts at the request processing stage. When fees are assessed, the institution should advise the requester that the acts permit the waiver of all or part of the fee in certain circumstances. The institution should provide the requester with either an explanation of the requirements of the acts or a copy of the relevant sections of the acts.

The institution should also advise the requester of the type of evidence required to make a waiver determination. If the requester submits a fee waiver request, the institution must provide the requester with a written decision on the fee waiver.

[69] The appellant was not offered an opportunity to seek a fee waiver by Hydro and, therefore, did not request a fee waiver from Hydro. Accordingly, as there is no decision of Hydro under appeal regarding a fee waiver, I will not be considering the appellant’s fee waiver request made to the IPC in this order.

Conclusion

[70] In summary, I uphold:

• Hydro’s search fee of $300; and
• Hydro’s estimated photocopy fee of $128,046.80.

[71] I do not uphold Hydro’s fee estimate of $541,415.10 for preparing the records for disclosure and reduce it to $160,047.90.

ORDER:

1. I uphold Hydro’s search fee in the amount of $300.
2. I uphold Hydro’s photocopy fee estimate in the amount of $128,046.80.
3. I do not uphold Hydro’s fee of $541,415.10 to prepare the records for disclosure.
4. I order Hydro to reduce its preparation fee estimate to $160,047.90.

Original Signed by:		April 30, 2025
Diane Smith
Adjudicator