Understanding “fees” with ease!
In my experience, an applicant is sometimes surprised 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 bodies). I think understanding the concept of “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 individuals. 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.
Below are the relevant sections from the FOIP and LA FOIP Acts and the accompanying regulations that govern fees.
Section 9 of FOIP/Section 9 of LA FOIP address fees and subsection 9(2) states:
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 section 7(1) of The Freedom of Information and Protection of Privacy Regulations (FOIP Regulations) and section 6(1) of The Local Authority Freedom of Information and Protection of Privacy Regulations (LA FOIP Regulations).
Subsection 7(2) of the FOIP Regulations/Subsection 6(2) of the LA FOIP Regulations provides if actual fees are less than the original estimate, then the government institution/local authority should refund the excess amount to the applicant.
Subsection 6(2) of the FOIP Regulations/Subsection 5(3) of the LA FOIP Regulations provide guidance on fees, while preparing records for disclosure. 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 in searching and preparing the records for disclosure, a fee of $15 per half-hour may be charged.
Subsection 6(1) of the FOIP Regulations/Subsection 5(2) of the 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; where records exist in electronic format, subsection 6(b.1) of the FOIP Regulations /5(b.1) of the LAFOIP Regulations, provide that government institution/local authority 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 government institution/local authority can charge the actual cost of copying the records.
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.” There is no application fee pursuant to the FOIP Regulations.
Below are some best practices to reduce fee estimates for citizens and public bodies.
Best practices for citizens:
- 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 government institution/local authority;
- If possible, narrow the scope of your request, based on the nature of the information you seek from a government institution/local authority. Broadly worded requests require more time to process. More time to process = larger fees; and
- It is beneficial to work with the government institution/local authority 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 government institutions/local authorities:
- Pursuant to section 5.1 of FOIP and LA FOIP, government institutions/local authorities have a “duty to assist”, which requires a government institution/local authority 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 seek any necessary clarification on the nature or scope of the request within legislative timeframes;
- If possible, only complete the preliminary search, not the full search prior to providing the fee estimate. This could save the amount of work government institutions/local authorities put in before confirmation from the applicant that they wish to proceed;
- Remember that, pursuant to subsection 9(4) of FOIP/subsection 9(4) of LA FOIP the 30 day clock stops until 50% of the fee estimate amount is paid by the applicant. 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 as this could avoid involvement from our office.
Government institutions/local authorities can find more resources on our website that provide guidance for charging fees/issuing fee estimates, such as:
- Steps to Charging Fees
- Fee estimate – Quick Calculation Guide
- Understanding the Duty to Assist: A Guide for Public Bodies
- Updated – Fee Waiver Criteria – In the Public Interest
Applicants and public bodies may find the following reports issued by our office helpful on this topic:
- IPC Review Report 042-2019 – the IPC recommended that the Ministry reimburse the applicant the fees they paid;
- IPC Review Report 034-2019 – the IPC found that the fee estimate was not reasonable;
- IPC Review Report 102-2019 – the IPC found that the applicant did not provide enough evidence to support their request for a fee waiver.
I am hopeful this resource would make understanding fees much easier. For any questions, please contact our office at firstname.lastname@example.org.