Fees, Estimates & Waivers

Fees, Estimates & Waivers Led by Larissa McWhinney Office of the Information & Privacy Commissioner of Saskatchewan April 29, 2009

Operating Principles • Fees should not be a deterrent to access • Fees should encourage applicants to be reasonable

Operating Principles cont. • SK OIPC Report F-2005-005, para 24: • “I want to ensure that fees do not present an unreasonable barrier to access to information...Consequently, this office will expect that fees should be reasonable, fair and at a level that does not discourage any resident from exercising their rights” ......

Operating Principles cont. • SK OIPC Report F-2005-005, para 24: • “At the same time, the fee regime should promote and encourage applicants to be reasonable and to cooperate with government institutions in defining and clarifying their access requests.”

Operating Principles cont. • “The fee system is not designed to generate revenue for governments...” – former Federal Info. Comm. John Reid • “The current fee structure was chosen as the best balance between limiting resources implications...and providing access to information...” – Minister of Supply and Services Canada

Barriers to Access • Fees and delays are biggest barriers to access; • Can go hand-in-hand: • Inferior record management and lack of familiarity with exemptions, etc., can cause delays and inappropriately higher fees/estimates. • Proper record management and knowledge of exemptions, etc., is key to appropriate fees, and lack thereof cannot be a factor in higher estimates.

Fees in the Acts • FOIP: section 9; • Regs: sections 6-8; • LA FOIP: section 9; • Regs: sections 5-7; • HIPA: section 39

Fees in the Acts cont. • FOIP and LA FOIP Regs detail compensable activities; • HIPA only says: “a trustee may charge a reasonable fee not exceeding the prescribed amount to recover costs incurred in providing access to a record containing personal information.” 

Fees in the Acts cont. • As of now, no “prescribed amount” in HIPA; • SK OIPC Report H-2006-001, para 50: • Trustees should “ensure that they are in line with charges permitted under FOIP and LA FOIP.” • $50 fee to “open” a file is excessive; • $500 for IME is excessive;

Types of Fees • Application Fees • Search Fees • Preparation Fees • Reproduction Fees • No fees other than application fees can be charged if access is denied.

Application Fees • None in FOIP • $20 in LA FOIP • None in HIPA currently • Non-refundable if access denied.

Search Fees • FOIP – 2 hours free (or preparation) • LA FOIP – 1 hour free FOIP & LA FOIP: $15 per half hour thereafter only for search in well-managed records; • “Applicants should...not [bear] costs arising from administrative inefficiencies or poor records management practice” – SK OIPC Report 2005-005, para 21, quoting from AB FOIP Bulletin. • No search fees for off-site travel.

Preparation Fees • FOIP – 2 hours free (or search) • LA FOIP – 1 hour free (or search) • $15 per half hour thereafter for physical severing time; • Not for considering exemptions; • Not for identifying 3rd party records; • Not for time spent proofing/photocopying; • NB: “search” and “preparing” time should be clearly distinguished in fee estimate (see SK OIPC Report 2005-005, para 50).

Reproduction Fees • See FOIP Regs 6(1) and LA FOIP Regs 5(2) for details; • 6(3)/5(2) – refer to costs for electronic retrieval; • These clauses considered obsolete (SK OIPC Report 2005-005, paras 53-54): • These sections “contemplate recourse to remote equipment that involves data sorted in a fashion that restricts access to dedicated computer technicians. I find that 6(3) would not have been intended to address the contemporary situation where office workers have ready access via desktop computers...” • Cannot charge for shipping costs;

Appropriate Fees • Should include break-down of: • Time required to search electronic records; • Time required to search physical records; • Time to physically sever if necessary; • Number of employees involved; • Reproduction costs.

Inappropriate Fees • No fees can be charged for (SK OIPC Report 2005-005): • Discussing scope of request with applicant; • Searching through badly organized files; • Travel time for searches (offsite); • Identifying 3rd party records; • Considering exemptions; • Consultations with senior staff; • Preparing index of records and submission; • Time spent photocopying and packaging; • Shipping costs.

Burden of Proof • No explicit reference to burden of proof for fees in the Acts; • Burden of proof regarding exemptions to access in general is on head/trustee; • By extension, burden of proof for justifying fees is also on the head/trustee.

Duty to Assist • Specify & Clarify! • FOIP & LA FOIP section 6(1)(b): • Applicant must “specify the subject matter of the record requested with sufficient particularity as to time, place and event to enable an individual familiar with the subject matter to identify the record.” • HIPA section 34(2)(b): • Written request for access must “contain sufficient detail to enable the trustee to identify the PHI requested.”

Duty to Assist, cont. • FOIP & LA FOIP 6(3): • “Where the head is unable to identify the record requested, the head shall advise the applicant, and shall invite the applicant to supply additional details that might lead to identification of the record.” • No equivalent in HIPA; should be best practice;

Duty to Assist, cont. • Should make it a general practice to contact applicant to clarify request, even if sufficient specificity is provided; • Applicants not always aware of how to make a request, and don’t know how records are filed; often ask for more or less than they need; • In the course of specifying and clarifying, narrowing may occur, reducing resources and fees.

Fee estimates • Purpose: • Gives applicants incentive and opportunity to modify request if necessary; • Prevents public body from doing more initial work than necessary; • Must provide estimate when projected costs over $50; • Should provide between days 3-10 (see Access Request Checklist from Justice); • 30-day timeline paused while applicant considers estimate, then resumes.

Fee Estimates, cont. • Deposit of no more than ½ estimate can be required before continuing (FOIP 9(2)); • Can not ultimately charge more than fee estimate; • Must charge less than estimate if actual costs are less than estimated costs (FOIP Regs 7(2)); • No fees other than application fees can be charged if access denied.

Interim Notice • Should be provided at same time as fee estimate; • Should give indication of whether records are likely to be released; • Should attempt to forecast applicable exemptions (not reviewable by OIPC); • Should include right of fee estimate review by OIPC; • Should include further invitation to specify & clarify; • Should include request for fee waiver substantiation if fee waiver has been requested...

Fee Waiver • Heads must pay attention to access request to see if fee waiver is requested (2007-001); • Trustees should give applicants the option of requesting waivers; • Fee waiver requirements should be requested at the same time as estimate and interim notice are provided unless total costs are $50 or less, in which fee waiver should be considered as soon as that is known;

Fee Waiver Criteria • In spirit of the Acts, fees can be waived where appropriate in eyes of head/trustee; • Considerations might include: • Whether waiver would be appropriate in response to undue delays; • Whether waiving fees would be inappropriate due to extent of required search and responsive records (2005-005, para 22);

Fee Waiver Criteria, cont. • FOIP & LA FOIP Regs require heads to consider waiving fees when: • Actual fees more/less than prescribed fees; • Actual fee is less than $10; • Fees will cause applicant “substantial financial hardship;” andeither (a) request is for personal records; or (b) request is in the public interest.

Fee Waiver Criteria, cont. • Burden of proof on applicant to meet conditions for fee waivers; • However, public body must assist by indicating what evidence is required, e.g., criteria for: • Substantial financial hardship; • Public interest... 

Fee Waiver Criteria, cont. • No statutory indication of what is required to meet fee waiver criteria; • Re: substantial financial hardship, OIPC position is that least amount of PI should be requested to meet the burden; • Where possible, rely on already established indications (welfare, LICOs, etc.);

Fee Waiver Criteria, cont. • Where public interest is involved (where request for general as opposed to personal files), request applicant to meet that test before requiring PI for financial hardship test; • No statutory requirements for what to consider for public interest test; • Alberta’s OIPC suggests a number of considerations... 

Fee Waiver Criteria, cont. • Public interest considerations: • What is the likelihood that applicant will disseminate contents of record? • Will members of the public benefit from disclosure? • Has access to similar records been given at no cost? • Would waiving fee shift unreasonable burden from applicant to public body?

Fee Waiver Process • Clock pauses between time that applicant is advised of what to submit for fee waiver application and actual submission of data – then resumes; • Responses, or lack thereof, to fee waiver requests are reviewable.

Relevant Reports • SK OIPC F 2005-005 • SK OIPC LA 2005-003 • SK OIPC F 2007-001 • SK OIPC H 2008-001 • SK OIPC H 2006-001 • SK Annual Report 2004-2005 • Ontario ORDER PO-2299

Next BBL • May 27, 2009 • Duty to Assist • To register, contact Aaron Orban at: 798-4155 or aorban@oipc.sk.ca. Thank you for your participation!

Fees, Estimates & Waivers