UPDATED: Fee Waiver Criteria – In the Public Interest
Please note that this blog was originally posted on March 25, 2015. On January 1, 2018, amendments to both The Freedom of Information and Protection of Privacy Regulations (FOIP Regulations) and section 8 of The Local Authority Freedom of Information and Protection of Privacy Regulations came into effect. The blog below discusses these regulations as they were at the time of the original blog post and as they are discussed in the report referenced in the blog. While these sections of the regulations have changed, the discussion of how we determine what is in the public interest is still relevant. Also, since this blog was originally posted, this office also issued Review Report 029-2017 on the issue of fee waivers.
Our office has not yet had an opportunity to examine fee waivers formally in a report – until now.
We have recently released Report 145/2014 which delved into this issue.
Section 9 of The Freedom of Information and Protection of Privacy Regulations (FOIP Regulations) and section 8 of The Local Authority Freedom of Information and Protection of Privacy Regulations prescribe the circumstances where the head of a public body should consider a fee waiver.
In our report, the Commissioner established criteria for determining whether giving access to a record would be in the public interest pursuant to subsection 9(b)(i) of the FOIP Regulations. The criteria are as follows:
- Will the records contribute to the public understanding of, or to debate on or resolution of, a matter or issue that is of concern to the public or a sector of the public, or that would be, if the public knew about it? The following may be relevant:
- Have others besides the Applicant sought or expressed an interest in the records?
- Are there other indicators that the public has or would have an interest in the records?
- Is the Applicant motivated by commercial or other private interests or purposes, or by a concern on behalf of the public, or a sector of the public? The following may be relevant:
- Do the records relate to a personal conflict between the Applicant and the government institution?
- What is the likelihood the Applicant will disseminate the contents of the records in a manner that will benefit the public?
- If the records are about the process or functioning of government, will they contribute to open, transparent and accountable government? The following may be relevant:
- Do the records contain information that will show how the government institution reached or will reach a decision?
- Are the records desirable for the purpose of subjecting the activities of the government institution to scrutiny?
- Will the records shed light on an activity of the government institution that have been called into question?
We note that this is criteria, not a test. Therefore, not all questions must be satisfied to find for or against a fee waiver. In addition, some of these criteria might not be relevant in every case, while the public body or applicant might draw the Commissioner’s attention to other relevant criteria.
We encourage public bodies to adopt their own similar criteria for use when they must make decisions on fee waivers.
Please note that pursuant to subsection 9(b)(i) of the FOIP Regulations, the fees must also cause the applicant ‘substantial financial hardship’. There was no need for the Commissioner to examine this aspect in his report. Further, our office has not yet established a test for this. Stay tuned!