The purpose of this paper is to identify and analyze the various policy and procedural options regarding fees and fee schedules for requests under the federal Access to Information Act.

In preparing this report, the consultant reviewed

policy papers and reports prepared by the Treasury Board on the cost of the ATI Regime,
academic papers on the subject of fees,
Provincial Access/Privacy Commissioners' orders on the subject of fees and fee waivers, and
Speeches and other materials provided through the ATI Task Force web-site.

Research has shown that the costs of administering the Access to Information Act have steadily increased over the past 18 years. Many senior managers in government believe that the fee schedule and the administration of fees under the Act is antiquated and substantial changes should be made to discourage what they see as use of the Act that is inconsistent with the intent of Parliament and to bring it up to date. On the other hand, many academics, interest groups, the media, and the Information Commissioner are generally opposed to increases in the fee schedule or changes in procedures that they believe could limit or create a barrier to access.

It is important to recognize that there are four types of fees that can make up a fee schedule: application fees, search and preparation fees, fees for the review of records, and fees for the reproduction of records. The research indicates that while most jurisdictions in Canada have application fees, all have fees to cover some aspects of processing the requests and reproduction of records. The federal and provincial legislators (and legislators in other jurisdictions) clearly intended to use fee structures as a means of disciplining demand, but they remain sensitive to the issue of charging for a democratic right. No jurisdiction has a full cost recovery regime for access to information requests.

ATI Coordinators, public servants, and applicants and academics report that the current fee estimate process is inefficient. The existing fee structure, with general provisions for fee waivers, open-ended complaint processes, and imprecise estimation results in an adversarial and frustrating situation for both departments and applicants.

Among the options considered with regard to changes to the fee schedule are:

retaining, increasing or eliminating the application fee;
linking the application fee with fees for levels or service;
charging different fees for different categories of users;
incorporating a means of indexing the fee structure to bring it up to 2001 levels and keep it current;
adjusting the fee structure to provide for special services, such as translation from a language other than English or French, or expedited shipping;
creating an all encompassing fee based on documents and data released; and
creating a ceiling for "research" or exceptionally voluminous requests beyond which a more stringent fee structure could apply.

The objective of the fee schedule appears to be a well-functioning access system with the best combination of encouraging accessibility, encouraging focused requests and ensuring the sustainability of the system. It is also vitally important that the fee schedule be seen as reasonable by the public and the administration of fees be as simple as possible, otherwise it will only encumber the system with complex fee estimates, delays, and complaints.

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PURPOSE

To identify and analyze the various policy and procedural options regarding fees and fee schedules for requests under the federal Access to Information Act (ATIA). Do the existing fee schedule and the administration of fees under the Act strike the appropriate balance between a citizen's right of access and the administrative costs of access requests on Canadian taxpayers? Does the fee structure provide the right incentives for government institutions to release information and for people to specify the information they are requesting? Does it support both the intent of the Act and the sustainability of the system?

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PROJECT OBJECTIVE AND SCOPE

The Government of Canada established the Access to Information Review Task Force in August 2000 to conduct a comprehensive review of the Access to Information Act and its administration. The work of the Task Force includes a review of administrative and legislative aspects of access to information and will provide recommendations for improvement.

This policy paper is prepared for the consideration of the Access to Information Review Task Force and intends to outline the policy options with regards to the fee schedule and the administration of fees under the ATIA. The paper is intended to outline options, and associated risks and benefits; it is not intended to make specific recommendations on the administration of the fees/fee schedule.

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METHODOLOGY/RESEARCH

The consultant reviewed the following materials:

Reports prepared by the Consulting and Audit Canada (CAC) for the Treasury Board Secretariat on the cost of the ATI regime,
Reports of access legislation reviews in other Canadian jurisdictions,
Academic papers on the subject of fees,
Provincial Access/Privacy Commissioners' decisions and orders on the subject of fees and fee waivers,
Speeches and other materials available through the ATI Task Force web-site

ATI policy divisions in B.C., Alberta and Ontario, and the Access/Privacy Commissioner's offices in each of those jurisdictions, were contacted. Information from interest groups was gathered from secondary sources. The ATI Task Force has also received detailed submissions from the general public and interest groups on the issue of fees.

ANALYSIS

1. Introduction:

The federal Access to Information Act (ATIA) was proclaimed in 1983. The Federal Act, the Quebec Act and the acts passed in some of the Maritime Provinces made up the first "generation" of access legislation in Canada. Only minor amendments to the ATIA have been made in 18 years. Since the proclamation of the Federal Act, all of the Provinces and Territories have passed similar legislation, and several provinces have extensively reviewed and amended their access to information acts and regulations. It could be argued that Access Legislation in provinces, such as Ontario, B.C. and Alberta, is more up to date than the federal legislation. It is therefore important to examine the administration of fees in other Canadian jurisdictions. It is also useful to compare the ATIA fee structure and administration to those in place in the U.S., Australia, and the U.K.

It is important to recognize that there are four types of fees that can make up a fee schedule, application fees, search and preparation fees, fees for the review of records and fees for the reproduction of records. (Appendix II contains a comparative table on fees). While some jurisdictions do not have application fees, they all have fees that cover processing and reproduction. A request under the Access to Information Act can be for one document or over a million records. All Access to Information laws in other countries and in Canadian provincial jurisdictions provide for some limits on a citizen's right of access, such as charging a basic application fee and other associated costs to requesters or limiting a request where its response would cause undue interruptions to government operations. Most other Access laws also contain limitations on frivolous or vexatious requests.

The federal legislation in Canada provides few of these limits to a citizen's right of access. The federal act is considered to be "generous" to applicants because of the $5 application fee and because additional charges for search and preparation of the records are calculated on the basis of $10 for every hour over five hours, which represents a low fee in comparison to other jurisdictions, plus reproduction fees which are as low or lower than any of the Provinces.

There is no limit on the size or number of requests that an applicant can make, and no provision for exempting the requirement to respond to repetitious, frivolous or vexatious requests. There is no differentiation between fees charged to an individual concerned in a public policy issue, or business requesting information for a commercial interest.

Section 11 of the ATIA provides that the requester may be required to pay an application fee not exceeding $25. Regulations set the application fee at $5 in 1983. It has not changed since. The regulations have not been updated for reproduction costs of newer record forms such as CD-ROM or COM; nor have the criteria for fee waivers been reviewed (See Appendix 1 for current criteria on fee waivers).

Under the ATIA, any applicant may file a complaint to the Information Commissioner when he believes that the fee estimate is unreasonable. There are no provisions in the Act to narrow or define what is "reasonable"; therefore, the arena for complaints is completely open.

The costs of administering the Access to Information Act have steadily increased over the past 18 years, largely likely due to the increase in the volume of requests. ⁽¹⁾ Many government senior managers, and ATI Coordinators believe that the fee schedule and the administration of fees under the Act is antiquated and that substantial changes should be made to discourage what they see as use inconsistent with the intent of the Act. Some senior managers believe that the ATI fee structure should be reexamined in light of policy changes to government cost recovery. However, they all agreed that the fee structure had to be consistent with the intent of the Act and should not discourage legitimate requesters. On the other hand, many academics, interest groups, the media, the Access to Information Commissioner, are generally opposed to any increases in the fee schedule or changes in procedures that they see as limiting or creating a barrier to access.

Dr. Alasdair Roberts of Queen's University reviewed the successes and failures of the Access to Information legislation. He believes that poor administration of the ATI law is creating the cost increases, resulting in pressure to increase fees. He sites issues such as poor records management, the government's own demand for services from the access system (increased use of the Act by MP's for example), and the levels of management that require review and sign off before release as responsible for delays and costs associated with complaints.⁽²⁾

The Information Commissioner has commented on the cumbersome approval processes used by some institutions to minimize the risk of embarrassment. He stated that the high costs associated with access administration are due to poor organization of records and the multi-layers of approval within the administration.⁽³⁾

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2. What are the objectives of an ATI fee schedule?

In 1977, the government Green Paper entitled Legislation on Public Access to Government Documents ("The Green Paper") introduced the major policy considerations under an Access to Information Regime. The report states: "the question of public access to government documents is one which goes to the very heart of the process of governing. Underlying the concern over it is the desire to improve that process in the hope that improved access to information will raise the quality of public discussion and aid mutual understanding…. the government believes firmly in the basic principle that since such information is developed at public expense, it ought to be made publicly available whenever possible."⁽⁴⁾.

Government officials have repeated this primary objective of the legislation over the years; the commitment to openness, transparency and access to information without barriers is contained in speeches, government reports and other documents. The Minister of Justice addressed the Canadian Bar Association in August 2000. She acknowledged the importance of effective access to government information in maintaining public confidence in government. She committed to the review of the ATI legislation and administration with a view to "reflect the expectations of the public, while protecting its legitimate interests"⁽⁵⁾.

The right of "freedom" of information is seldom expressed without limit. When asked (in 1995) about the rationale for the existing fee schedule, the Information Law and Privacy Section of the Department of Justice stated that fees were intended to insert a limiting feature on the workload that ATI would create; the existing fee schedule was seen as the best balance between limiting ATI resource implications and providing the access to information that the Act calls for.⁽⁶⁾

The argument is sometimes made that the public has already paid for the creation or collection of the information and that therefore it should be available free of charge. This type of argument ignores the fact that the fee structures in all jurisdictions are related to only the processing of the information required to respond to a specific request.

The 1977 Green Paper clearly anticipated that the statute would have to deal with the payment of fees and deposits. According to this paper, the objective of a fee structure was not total cost recovery, but rather, a requirement for a standard fee at the time of application, which included a certain amount of reproduction and search time. This initial fee was intended to reduce accounting problems and to discourage frivolous requests by ensuring that the requesters were seriously interested in the information. ⁽⁷⁾

The Government's initial intention was that fees would not become a barrier to access by the average Canadian citizen. The fee schedule was never intended to pass on the actual costs of search, review, preparation and reproduction. The government was sensitive to the difficulty in charging for search fees because the costs would vary from department to department largely dependent on the efficiency of the records management system. Charges for reviewing documents for exemptions to disclosure were not contemplated because this activity could be viewed as a de facto means of frustrating release.⁽⁸⁾

The recently reviewed and amended provincial legislation and federal legislation in Australia, the U.K. and the U.S. demonstrates some evolution in stated objectives of fees and the administration of fees for access to information requests. All of these statutes reflect the intention to use fees as a method of encouraging requesters to focus their requests and as a method of discouraging frivolous requests.

The B.C. Attorney General Colin Gabelmann, in legislative debates over fees, stated:

"The reason for having fees …. Has more to do with the need to ensure that the opportunities provided by this legislation are not abused … There has to be some kind of deterrent, and that's the balance…. If it is not your own but government information, but if it is government information that is of wide public interest, it too will be free."⁽⁹⁾

In the B.C. Information and Privacy Commissioner's Order No. 55-1995, the Commissioner stated:

"The point of the legislation is to ensure that government information is widely available, so as to improve the public accountability of our institutions. To that end obstacles, including fees, should be minimized and, in the case of an issue of public interest …. waived."⁽¹⁰⁾

In most international and Canadian jurisdictions, there is an emphasis on partial cost recovery or a contribution by requesters. As a means to assessing the access to information system, the Federal Government undertook two studies in the period between 1994 and 2000 to analyze the costs of administering the ATI law. The studies contained recommendations for rationalizing the administration of fees, recouping some of the costs of administering the access regime and ensuring its sustainability. The government's interest in understanding the costs and the role of fees may be driven, in part, by the government's desire to reduce expenditures and balance the budget, or by the desire to understand the trends in the cost of ATI and the potential impact on the public purse. It may also be influenced by the government policy that directs departments to pursue opportunities to improve cost recovery through user fees. The [1996] study suggested several policy changes aimed at "reducing net costs to the Crown", including an increased application fee, broader definitions of chargeable costs, less generous treatment of commercial requesters and stronger incentives for departments to recover costs from users.⁽¹¹⁾

Ontario has already amended its legislation to increase cost recovery from users of its access laws. The Savings and Restructuring Act (S.O. 1995, c.1, schedule K) introduced a new application fee for FOI requests and a fee for individuals who wished to make complaints to the provincial Information Commissioner. It eliminated the right to two free hours of staff time and broadened the range of costs that could be charged back to clients.

In 1997 an all-party Special Committee of the B.C. Legislature was struck to review that province's FOI Act. The following quotes from the Committee's report, clearly outline the conflicting interests in fees under access legislation:

"Once the fundamental importance of access to information to the functioning of our democratic government is accepted, the notion of charging people to exercise their right of access can be seen to be fatally flawed." (Canadian Bar Association, B.C. Branch).

"While the act confers information rights, it must be recognized that the resources available for servicing those right are limited. It is important that applicants bear some responsibility in exercising their rights. One aim of this submission is to contain the cost of administering the act so that resources can be redirected toproviding other services to the public."(Government of B.C. Corporate Submission⁽¹²⁾).

The British Columbia Access to Information Review Committee received more comments on fees for information requests than on any other issue. In its final report, the Committee stated its belief that the existing fee structure was acceptable - that it balanced the interests of the public bodies and individual requesters. The Committee stated that access to information is a right adhering to citizens, and that it enhances democratic governance by maintaining accountability, integrity and efficiency in the work of public bodies. The cost of freedom of information should be "considered a justifiable expense". Members felt that the current fee levels were high enough to minimize frivolous requests, but still reasonable for responsible requesters.

Summary: Most jurisdictions are sensitive to the issue of charging for a democratic right, but legislators clearly intended to use fees structures as a means of disciplining demand.

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Footnotes:

1. In 1977 the Government anticipated that implementation of the ATI Act would cost departments $10.5 million annually. In 1998-99 the cost to departments was estimated to cost almost 25 million. The original estimate is very close to the actual estimated costs, adjusted to 1998 dollars. Costs appear to be increasing at a rate of 7% each year. However, these cost increases are attributed to costs in volume of requests and responding to complaints; the actual unit cost of search and review time is decreasing. (Source: Treasury Board Secretariat: Costs Associated with Administering ATIP Legislation, 2000).

2. Alasdair Roberts, "Limited Access, Assessing the Health of Canada's Freedom of Information Laws", April 1998, p. 51.

3. John Reid, speech to ADM Advisory Committee, Feb. 23, 2001.

4. Government of Canada: Legislation on Public Access to Government Documents, Supply and Services Canada: 1977), page 3.

5. Notes for an Address by Honourable Anne McLellan to the Canadian Bar Association, August 21, 2000. (Internet - see ATI web site)

6. Consulting and Audit Canada,, Review of the Costs Associated with the Administration of Access to Information Legislation, 1995, section 3.1.

7. Ibid. Page 27.

8. Government of Canada, 1977, page 27.

9. B.C. Debates, June 22, 1992, p. 2871.

10. B.C. Information and Privacy Commissioner, Order No. 55-1995, Inquiry re: The City of Vancouver's denial of the New Democrat Government Caucus's request for a fee waiver.

11. Consulting and Audit Canada, "Review of the Costs Associated with the Administration of the Access to Information and Privacy Legislation," [1996]. Available at www.tbs-sct.gc.ca pubs this link doesn't work

12. British Columbia Access to Information Review Committee Report (from Government of B.C. Corporate Submission).

Last Updated: 2001-12-08

Important Notices

Report 23 - Access to Information Review Task Force

ISSUES AND OPTIONS REGARDING FEES UNDER THE ACCESS TO INFORMATION ACT

Table of Contents

EXECUTIVE SUMMARY

PURPOSE

PROJECT OBJECTIVE AND SCOPE

METHODOLOGY/RESEARCH

ANALYSIS

1. Introduction:

2. What are the objectives of an ATI fee schedule?