Understanding “fees” with ease! (updated)
In my experience, an applicant is sometimes confused when they receive a fee estimate from a government institution pursuant to The Freedom of Information and Protection of Privacy Act (FOIP), or a local authority pursuant to The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP). For example, the applicant questions why they need to pay fees to get access to their own personal information in the possession or under the control of a government institution or local authority (public body) or why certain fees were charged. I think understanding how the legislation governs “fees” may assist with understanding why a public body, may issue a fee estimate.
Fees are intended to provide for reasonable cost recovery for public bodies when providing records to applicants. A reasonable fee estimate is the one that is proportionate to the work required by the public body to respond efficiently and effectively to the applicant’s request. Public bodies should issue reasonable, fair and consistent fee estimates.
Section 9 of FOIP and LA FOIP govern fees and subsection 9(2) of FOIP and LA FOIP state:
- 9(2) where the amount of fees to be paid by an applicant for access to records is greater than a prescribed amount, the head shall give the applicant a reasonable estimate of the amount, and the applicant shall not be required to pay for an amount greater than the estimated amount.
This prescribed amount of $100 is found in subsection 7(1) of The Freedom of Information and Protection of Privacy Regulations (FOIP Regulations) and subsection 6(1) of The Local Authority Freedom of Information and Protection of Privacy Regulations (LA FOIP Regulations).
There are generally five kinds of fees that a public body can include in its fee estimate: application; search; machine and operator costs; preparation; and reproduction of records. Below are the relevant sections from FOIP and LA FOIP and the accompanying regulations that govern fees:
Application fees:
- Subsection 5(1) of the LA FOIP Regulations provides, “an application fee of $20 is payable at the time an application for access to a record is made.” FOIP does not have an application fee.
Fees for search of responsive records:
- Subsection 6(2) of FOIP Regulations/ Subsection 5(3) of LA FOIP Regulations provide guidance on what fees can be charged for search efforts. Both subsections advise where time in excess of the prescribed amount (two hours for FOIP/ one hour for LA FOIP) is required by experienced staff to search for the responsive records, a fee of $15 per half-hour may be charged. Our office advises that it could take an experienced staff, one minute to search 12 pages of records, five minutes to search one drawer and three minutes to search an email account.
- Subsection 7(2) of FOIP Regulations/ Subsection 6(2) of LA FOIP Regulations provides if actual fees are less than the original estimate, then the public body should refund the excess amount to the applicant.
Fees for machine and operator costs:
- Subsection 6(3) of FOIP Regulations/ Subsection 5(4) of LA FOIP Regulations provide for the charging of additional fees when a machine and operator costs need to be factored into the search and retrieval of electronic data.
Fees for preparation of responsive records:
- Subsection 6(2) of FOIP Regulations/ Subsection 5(3) of LA FOIP Regulations also provides the same guidance on fees for preparing records for disclosure. Our office advises that it could take an experienced staff, two minutes to sever one page of responsive record.
Fees for reproduction for responsive records:
- Subsection 6(1) of FOIP Regulations/ Subsection 5(2) of LA FOIP Regulations provide guidance on the actual cost of reproduction of records, such as photocopy/ print-out cost, is prescribed at $0.25 per page. It should be noted that public body should charge no fees, if the record is provided to an applicant via email. Subsection 6(b.1) of FOIP Regulations/ 5(b.1) of LA FOIP Regulations provide that the public body could charge, the actual cost of the portable storage device; and where records exist in any other form than paper and electronic, these subsections provide that the public body can charge the actual cost of copying the records.
For further explanation as to how to calculate fees, see the following resources available on our website: IPC Guide to FOIP – Chapter 3 and IPC Guide to LA FOIP – Chapter 3.
Below are some best practices to reduce fee estimates for applicants and public bodies:
- Best practices for applicants:
- When making an access to information request, list specific documents if possible and a specific time period in order to limit and focus the search efforts for the public body;
- If possible, narrow the scope of your request, based on the nature of the information you seek from a public body. Broadly worded requests require more time to process. More time to process = larger fees; and
- It is beneficial to work with the public body to reach a reasonable fee or resolution; however, if you remain dissatisfied with the fee estimate, you have a right to request a review from our office.
- Best practices for public bodies:
- Pursuant to section 5.1 of FOIP and LA FOIP, public bodies have a “duty to assist”, which requires a public body to make every reasonable effort to identify and seek out records responsive to an applicant’s access to information request; to explain the steps in the process and to seek any necessary clarification on the nature or scope of the request within legislative timeframes;
- If possible, only complete the preliminary search (representative sample), not the full search prior to providing the fee estimate. This could save the amount of work a public body puts in before confirmation from the applicant that they wish to proceed;
- Remember that pursuant to subsection 9(3) of FOIP/ subsection 9(3) of LA FOIP, where a public body provides a fee estimate to an Applicant, the Applicant may be required to pay a deposit of an amount that does not exceed one-half of the estimated amount before a search is commenced. Therefore, it is advisable to issue a fee estimate within 3-10 days of receiving the access to information request; and
- It is beneficial to work with the applicant to reach a reasonable fee or resolution, which could avoid involvement from our office.
Public bodies can find more resources on our website that provide guidance for charging fees/ issuing fee estimates, such as:
Applicants and public bodies may find the following reports issued by our office helpful on this topic:
- IPC Review Report 042-2019 – recommended that the Ministry reimburse the applicant the fees they paid;
- IPC Review Report 034-2019 – found that the fee estimate was not reasonable;
- IPC Review Report 102-2019 – found that the applicant did not provide enough evidence to support their request for a fee waiver;
- IPC Review Report 106-2022 – found that fees for creating a query to search for emails and a PowerShell script was reasonable;
- IPC Review Report 258-2022 – found a fee for a computer operator to search for and retrieve information from its human resource information system (HRIS) was appropriate; and
- IPC Review Report 062-2023 – found that the fee estimate was not reasonable and recommended that the City reimburse the applicant part of the fee it had charged.
I am hopeful this blog, will help all with understanding why certain fees may be charged. For any questions, please contact our office at intake@oipc.sk.ca.