Fees and Costs Associated With ATIPP Requests

Stacey Pratt and Jennifer Taylor

Breakout Session 2C May 1, 2018 1

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Background

• Before 2012, Access to Information requests cost $5 to make, and applicants were charged $15/hour after 2 hours of processing.

• Post Bill-29, the $5 application remained and applicants were entitled to 4 hours free processing.

• This changed again under the ATIPPA, 2015. Application fee eliminated, and fees only applicable for searching (above 10 hours for municipalities; above 15 hours for all others).

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ATIPPA, 2015 Fee Schedule

• A public body can charge: – $25 for each hour locating after the first 10 hours (local

public bodies)

– $25 for each hour locating after the first 15 hours for all other public bodies.

• There are no application fees to make an ATIPP request.

• A person may be asked to pay for copies (25 cents a page for regular copying) or the actual cost of reproducing or shipping a records.

Personal Information Requests are not subject to fees.

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Cost Waivers

• A public body has the authority to waive the

payment of all or part of a cost.

– Waiver due to Financial Hardship

– Waiver where in the Public Interest to disclose

records.

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Waiver Due to Financial Hardship

• Application must be received within 20 business days from the day the estimate is sent to the applicant.

• Burden is on the Applicant.

– Must provide detailed evidence regarding the financial circumstances, including income and other relevant financial information.

• A large cost estimate will not automatically be presumed to cause unreasonable financial hardship.

• Applicant must be advised in writing of decision.

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Waiver where in Public Interest to Disclose

Records

• Application must be received within 20 business

days from the day the estimate is sent to the

applicant.

• The public body must determine if release of the

requested information would promote the stated

purpose of the ATIPPA, 2015 “to facilitate

democracy”.

• Applicant must be advised in writing of decision.

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Consideration of the Public Interest to

Disclose Records

• Factors to be considered:

– General public interest in transparency;

– Public interest in the issue;

– Public interest in the specific information – for

example, to help people understand their legal

rights and obligations;

– Suspicion of wrongdoing by public body; and

– Presenting a full picture.

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Suspicion of Wrongdoing by Public Body

• Suspicion must be more than a mere allegation.

– the basis of the actions are unclear or open to question;

– there has been an independent investigation;

– the information may refute or confirm suspicion;

– evidence of public concern regarding the issue; or

– there is a public interest in disproving suspicions and release would restore confidence

• Note - the OIPC cannot assess wrongdoing, it can only assess whether there is public interest in the request

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Applications to the Commissioner

• Applicants may apply for:

– a revision of a cost estimate; or

– a review of a decision not to waive payment of all or

part of the costs.

• The Commissioner may:

– revise the estimate and set an appropriate amount of

cost or a refund, if any;

– waive the payment of the costs or part of the costs in

the manner and in the amount that the commissioner

considers appropriate; or

– confirm the cost.

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Applications to Revise

• Burden is on the public body to establish that the cost is reasonable and in accordance with the ATIPPA, 2015.

• The public body must provide a detailed breakdown and description of the cost, including;

– the specific steps needed to locate the responsive records and how much time will be involved;

– the scope of the search for responsive records;

– who is responsible for locating the records and when they will be located;

– the number of pages to be copied or printed (estimated);

– documentation in relation to the actual cost of reproducing or providing a record that would not be possible to do using public body equipment; and

– documentation in relation to expected actual cost of shipping the records.

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Applications to Revise

• The public body should also provide the

Commissioner’s Office with:

– a copy of the estimate of cost sent to the

applicant;

– a copy of any correspondence between the public

body and the applicant;

– a copy of the access request; and

– any other relevant documents requested by the

Commissioner’s Office.

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Applications to Revise

• The Commissioner’s Office will take into account

whether the public body has implemented

proper records management policies and

procedures.

• If a deficient records management program has

resulted in a higher Cost Estimate, then the

resulting higher costs will not be considered as

necessary or reasonable.

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Applications to Review Decision on Waiver

of Payment

• If the Commissioner is satisfied that

– payment of the cost would impose an unreasonable financial hardship on the applicant; or

– it would be in the public interest to disclose the record

the Commissioner may waive the payment of the costs or part of the costs in the manner and amount the Commissioner considers appropriate.

• The Commissioner may ,alternatively, confirm the decision not to waive the cost.

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Applications to Review Decision on Waiver

of Payment

• The public body must provide the Commissioner’s Office with copies of:

– the estimate of cost sent to the applicant;

– the waiver application;

– the public body’s decision in relation to the applicant’s request for waiver;

– the access request;

– any correspondence between the public body and the applicant; and

– any other relevant documents requested by the Commissioner’s office.

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Applications to the Commissioner

• There is no appeal of a decision of the Commissioner in relation to revising a Cost Estimate or reviewing a refusal of a public body to waive the cost.

• An application to the Commissioner to revise a Cost Estimate or to review a refusal to waive costs:

– suspends the 20 business day time period during which an applicant is to accept an estimate or modify the request. Time resumes after decision is made by Commissioner.

– Suspends the time to respond to the access request. Time resumes when public body is notified by applicant to resume.

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Applications to the Commissioner

• Duty to Assist

– Were there attempts made to work with the

Applicant to narrow the search or breakout the

request into separate requests?

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Statistics

• General requests make up the majority of requests – in 2016-17, 15% were personal information requests,

85% were for general

• Of the 2085 access requests received in 2016-17, 95% were responded to within the legislated timelines.

• In 2015-16, an average of 51 requests were received per month; in 2016-17, this increased to an average of 92 per month

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Number of Requests by Year

317 299 429

697

1269

343 254 328

713

816 660 553

757

1410

2085

0

500

1000

1500

2000

2500

2012-13 2013-14 2014-15 2015-16 2016-17

Departments

Public Bodies

Total Requests

Received

Requests by Applicant Type

57

450

400

420

350

300

250

236

258

240

200

160 171

150

100

113

109

121

77 74

113

77

73 59 63

50 51 41 38

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11

6 10 0 5 6

37 41

7 15

2012-13 2013-14 2014-15 2015-16 2016-17

Political Parties Individuals Media Business Legal Firm Other

Requests by

Applicant

Type –

Government

Departments

only

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Number of Pages Processed

2013

2014

2015

20162017*

0

20000

40000

60000

80000

Number of

PagesNumber of

Excel sheets

10819

2

8177

0

32310

18

75262

20

60749

31

2013

2014

2015

2016

2017*

*2017 numbers complete to November.

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Benefits and Opportunities

• The current fee schedule enables anyone to

make a request, regardless of financial situation.

• Individuals are the fastest growing group of

applicants. In 2014-15, 74 requests were from

individuals, while in 2016-17, there were 420. The

year the fee was changed, 2015-16, individual

requests increased to 236.

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Benefits and Opportunities

• The current fee structure encourages increased

transparency and accountability of government,

as individuals are not discouraged by costs (or

potential costs).

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Challenges

• There is concern that the current fee structure has lead to an increase in number and size of requests.

• Increase is proven – increase of 216% requests in the last 5 years, and the number of pages between 2013 and 2016 (the last year with full counts available to date) has increased by 696%.

• The current fee structure requires clear communication between the coordinator and the applicant in order to review/revise the request for clarity and size, if needed. This is a part of the Coordinator’s duty to assist.

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Other Tools

• If working with the Applicant through your Duty to

Assist and you feel that a resolution without using

fees is possible, consider seeking a time extension.

• In limited circumstances applications to disregard a

request may also need to be considered.

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What about other jurisdictions?

Jurisdiction Application Fee Processing Fees

NL No Local PB: $25/hour after first 10 hours SEARCH only.

Other PBs: $25 after first 15 hours SEARCH only.

NS $5 $15 per half hour after first 2 hours locating, preparing and handling.

PEI $5 $10 per half hour after first 2 hours locating and preparing.

NB

No None

QC No Transcription costs only ($26.75 per hour).

ON $5 7.50 per 15 minutes search and preparation.

MB No $15 per half hour after first 2 hours search and Preparation.

SK Government - none;

Local authorities - $20

Government: $15 per half hour after first 2 hours (searching, retrieving, preparing).

Local authorities: $15 per half hour after first hour (searching, retrieving, preparing).

AB $25 (one time)

$50 (continuing)

$6.75 per 15 minutes searching, retrieving, preparing, handling.

BC No $7.50 per 15 minutes for locating and preparing (non-commercial applicants).

Commercial applicants charged the actual cost.

*CANNOT CHARGE FOR REDACTION

YK No $25 per hour after first three hours for searching, reviewing, producing, preparing.

NWT $25 $6.75 per 15 minutes for searching, reviewing, preparing, handling.

NUN $25 $6.75 per 15 minutes for searching, reviewing, preparing, handling.

CAN – FED $5 $2.50 per person per 15 minutes after 5 hours. *General Access requests only.

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Decisions from Other Jurisdictions

• University of Victoria

https://www.canlii.org/en/bc/bcipc/doc/2002/2002canlii42477

/2002canlii42477.html

– Partial fee waiver and parties to find other methods to

reduce fees.

• University of Alberta

https://www.canlii.org/en/ab/aboipc/doc/2010/2010canlii9866

4/2010canlii98664.html

– Insufficient evidence of hardship and public interest value.

• https://oipc.sk.ca/assets/lafoip-review-339-2017.pdf

– Refusal to confirm or deny considerations

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Resources

• Access to Information Policy and Procedures

Manual:

http://www.atipp.gov.nl.ca/info/pdf/Protection_of

_Privacy_Policy_and_Procedures_Manual.pdf

• Cost Schedule:

http://www.atipp.gov.nl.ca/info/CostSchedule-

Jun1-%202015.pdf

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Questions?