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Report 23 - Access to Information Review Task Force
ISSUES AND OPTIONS REGARDING FEES UNDER THE ACCESS TO INFORMATION ACT
3. Full cost recovery vs. partial cost recovery - how
do we determine where to draw the line?
In 1995 the Australian Law Reform Commission reviewed Australia's 1982 legislation (13) and commented that the cost regime should not be inconsistent with the objects of the Act. The Commission stated that it is counterproductive to disqualify citizens from participating by imposing prohibitive charges. Any examination of the cost issue should go beyond short-term expediency and include consideration of long-term public benefit. However, it is very difficult if not impossible to quantify social benefits derived from the right of access to government records. The Commission concluded that the $20 million spent yearly on their ATI regime was a bargain for such an essential tool of public accountability. They felt the law paid for itself in more professional, ethical and careful behaviour of public officials who must conduct most business in the open.
The Canadian Federal Government's 1977 Green paper assumed that the best combination of accessibility and deterrence to frivolous applications might be found in the area of $10 to $25, keeping in mind that an applicant interested in a particular subject area may have to pay such a fee to each of a number of separate departments. Assuming a reproduction fee of $.10 per page, the application fee would then entitle an applicant to up to 100 or 250 pages of documents before incurring additional charges.
In 1998-99, the government collected $290,000 in fees, or about $20 per request. This represents approximately 8% of the cost of search and preparation time and 1.4% of the estimated total handling costs. These estimates include the cost of overhead of the ATI units and time spent in the administration of the request - such as time spent reviewing each record and management approval of the ATI Coordinator's recommendation on release. Data from other jurisdictions on cost recovery through fees ranged from .13% to 4.05%. (14)
Consulting and Audit Canada's fee analysis stated that if the hourly fee for search and preparation time was increased from $10 to $30, the maximum possible recovery would rise to 16.7% of handling costs, or $2,700,000 would be recoverable. The study reported that the cost of search time has decreased by approximately 30% since 1993-94. The estimated 41% increase in total costs of administering ATIP was attributed to the increase in the volume of requests and the increase in complaints. (15) Therefore, it may not be reasonable to increase the application fee merely on the basis of increasing recovery for search and preparation time. (16)
The Fee Comparison Table attached to this paper demonstrates that most jurisdictions have increased fees to recover a larger proportion of actual costs of administering requests. However, it is important to remember that fees represent a very small proportion of total costs under the Act. Even a significant increase in fees charged to the public would result in a modest level of recovery. Increasing the $5 application fee to $25 results in slightly more than 1% of the total cost of administration. (17)
Summary: No jurisdiction has a full cost recovery regime for access to information requests. It is widely agreed that the cost of access to information laws greatly exceed the revenue collected from applicants, no matter what fee regime is implemented. Even substantial fees represent an insignificant amount of the actual costs of administering Access to Information legislation. Raising fees is likely to result in reducing the cost of administration due to a reduction in the number or size of requests rather than increasing cost recovery through fees. (18)
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4. For what part of the processing of an access request
is it appropriate to charge fees?
In the majority of jurisdictions, non-recoverable costs include: time spent on the review of documents, time spent on approving recommendations for release or withholding, general administration time associated with requests, costs associated with complaints (19), and overhead costs associated with the ATIP unit.
There are three different costs associated with processing an access request that may be considered chargeable. Search costs are the costs of identifying the file or files that may contain responsive documents, and of retrieving the files and extracting the documents. Review costs are costs incurred in examining the documents to determine if they fall within an exemption under the Act and to consider the factors relevant to any exercise of discretion provided in the exemptions. Reproduction costs include reproducing the records for the applicant.
Search, preparation and reproduction factors do not account for relatively large percentages of the overall cost. According to Consulting and Audit Canada's review of the administration of the Act, review costs are responsible for about one third of the total cost. Review is required to determine what information can be released, and what information must or should be withheld, according to the exceptions under the Act. Review involve a large degree of discretion, and fees are not charged in most jurisdictions (with major exception of US federal legislation that allows review and severing to be charged to certain categories of requesters such as commercial users). Therefore, it is doubtful that assessing fees for this function would be considered normal by requesters.
The Government's 1977 Green Paper also anticipated that research assistant activity - where exceptionally high search costs were involved - was a different type of request and that additional costs should be chargeable to the applicant. Some jurisdictions have built in a cost ceiling for requests (in the UK for example (20)), over and above which extra fees are charged or the agency is exempt from the requirement to respond. A similar provision was recommended by the CAC cost study.
Summary: In comparing the Canadian and international access legislation, one may conclude that the cost of the following parts of the request process are considered normal to recover: search and preparation time, reproduction costs, (as long as the reproduction costs do not exceed the actual cost of duplication), supervision of requesters reviewing records, and shipping costs. In some specific cases a different fee structure may apply (very large requests, some categories of requesters).
5. Is the fee estimate process efficient?
The two federal cost studies commissioned by the Treasury Board Secretariat conclude that the fee schedule is inefficient. ATI Coordinators providing input to the study concluded that the current fee regime in inefficient. Because there are no costs or other consequences to an applicant who complains about a fee, it is to the applicant's advantage to complain; however, there is a cost to the Office of the Information Commissioner and to the institution. The determination of fees is not precise. The classification of activities is subject to interpretation. The ability to estimate what will be required and how long it will take to respond to a request is difficult to do with precision. Some public interest groups have accused the government of abusing the fee estimate system by making exaggerated estimates in order to discourage applicants.
ATI Coordinators report that the requirement to produce precise estimates for imprecise searches coupled with the policy requirement that fees must be limited to lesser amount (estimate or actual) is a disincentive to recover fees. Furthermore, fees are collected by the department or institution, but are deposited in general revenue. Departments are faced with the burden of collecting fees with no direct benefit, and collecting fees can increase the likelihood of a complaint.
Some of these inefficiencies and criticisms have been mitigated in jurisdictions such as B.C., Alberta, Quebec and Ontario through the refinement of their acts and regulations, in precedents developed through the Commissioners' decisions, and in the development of standards and guidelines. For example, the British Columbia Commissioner's Order 00-19 addresses the issue of the ability or reasonableness of public bodies combining access requests and the provision of estimates based on this procedure. The applicant in this case objected to the public body combining four separate access requests for the purpose of calculating a fee estimate and determining entitlement to "free" location and retrieval time under s. 75(2) of the British Columbia Freedom of Information and Protection of Privacy Act. The B.C. Commissioner determined that a public body should not be allowed to combine access requests at will for the purposes of producing greater fee estimates, and that the Legislature likely intended that the allocation of "free" time was meant to benefit applicants by facilitating access with fees that would not serve as a barrier to access. The Commissioner also concluded that the Legislature also did not intend "that an applicant would be able to dictate separate processing and fee estimates for related access requests made contemporaneously to the same public body." (21)
In another example, the Corporate Privacy and Information Access Branch of the B.C. Government produced detailed Guidelines for Determination of Fee Estimates to assist Access Coordinators throughout government departments and local public bodies. These guidelines offer standard file folder measurements, the number of documents in an average file (legal and letter), the number of pages in a standard 1 cubic foot records box, number of rolls of microfilm or fiche in a standard cubic foot, and detailed tasks within the classification of "locating/retrieving and searching for records." (22)
Almost all jurisdictions contain specific provisions for fee waivers. Legislation in other jurisdictions provides for fees to be waived in cases where the applicant cannot afford to pay, or when the disclosure of information is in the public interest, while the federal legislation does not contain any criteria, leaving it to government policy. There are substantial bodies of decision criteria developed in other jurisdictions, particularly Ontario, B.C. and Alberta to provide guidance in these instances.
In 1999-2000 the federal Government collected $217,832 in fees, and waived a total of $165,564. (23) The average fee collected per completed request was $12 including the $5. application fee which is collected in all cases (1.3 % of the $927 directcost per completed request). The $12 average fee reflects only .6% of the actual costs (direct and indirect costs are estimated to be $2,010 per request). Many of these fees are likely waived because of the above mentioned disincentives in collecting fees. Some institutions have decided for reasons of convenience not to collect any fees above the application fee.
A general provision allowing an individual to challenge the fee estimate (such as is contained in the federal legislation) encumbers the system because there is no direction and no down side to filing a complaint about fees. If the Government wishes to make fee waivers more consistent, there should be a narrowing of the provision for the waiving of fees. There is a substantial body of Commissioner's orders and reports dealing with waiving fees in jurisdiction where the Commissioner has order making power (as opposed to an ombudsman role). Fee waiver provisions that include specific criteria for excusing fees may assist the system by reducing the breadth of complaints and make investigations less cumbersome.
Many jurisdictions require an application fee or base fee because application fees are easy to administer, provide discipline to the number and nature of requests and are not subject to complaint. The Australians suggest that there should be a base fee set at a level that reflects a reasonable contribution by the client. In Australia that fee is $30 or 10% of $300 considered to be reasonable marginal costs. ($300 represents approximately 10 hours of search and preparation time at $30 per hour, giving applicants 10 hours of search and preparation time for $30). This concept is consistent with the new U.K. legislation which provides that 10% of reasonable marginal costs can be charged, and that public bodies are exempt from the obligation to process the request if the cost of processing would exceed a threshold prescribed by the Secretary of State, expected to be set at £500. (24)
The federal cost study completed in 2000 recommended establishing an application fee with a basic level of service, and then adding a scale with ranges (such as $30 an hour). This fee level should be based on public expectations of a reasonable contribution from access requesters. In this scenario, applicants would be provided with greater certainty in the estimate, and may therefore be less likely to complain. When complaints are filed, they would be easier to investigate. For example, if the search was estimated to be 5 hours or more and total eligible costs were estimated to be greater than $300 - the fee would be set by a fee schedule. (E.g. 5-10 hours $75; 11-20 hours $150, 21-30 hours - $225.) (25)
The Australian Law Reform Commission (ALRC) considered the concept of a fee schedule based on the amount of information disclosed irrespective of the medium used (outputs rather than inputs). Such a fee schedule could have an application fee that would represent the total fee for an average request (say $25 for up to 200 pages or 200 MB) and then a sliding scale of charges for additional volume. Such a fee structure is not tied to the time or resources spent on processing the request. Conceptually, this removes the requirement for tracking time and resources, allowing ATI Coordinators to focus on processing requests instead of tracking costs. Also, this option may be more acceptable to applicants because it is clear that they are not paying for records retrieved and reviewed but not released to them. This option does not penalize applicants who request documents from departments with poor records management systems. It also allows the Government to charge higher fees for voluminous requests that are defacto "research" requests.
A single fee based on volume and increased incrementally may be based on a calculation of the average hard costs (search, retrieval, preparation, and reproduction of records) associated with requests. This model would require the Government to take a snap-shot of the current records and data management infrastructure to determine the average cost of processing requests. This approach could be a fair deal for the public, if the Government has its records management house in order. Depending on the state of records management in Government, the "average" cost could be considered prohibitive to the public, if agencies have not implemented records classification and retention policies. On the other hand, since it is not tied to actual costs of searching and retrieving records, this fee structure could be effective in encouraging the institutions to implement better practices.
The ALRC model has not been implemented in any jurisdictions; therefore it would require careful evaluation and analysis to develop the appropriate application fee and incremental scale based on volume of material released.
Summary: The evidence indicates that the existing fee structure, with general provisions for fee waivers, open- ended complaint provisions, and imprecise estimation results in an adversarial and frustrating situation for both departments and applicants. Simplicity and precision should be the goals of establishing an efficient and effective fee structure/regime. In order to simply the fee structure regime, the Government should seriously consider and explore the concept of a fee schedule based on the amount of information disclosed.
Footnotes:
13. The Australian Law Reform Commission, Review of Freedom of Information Legislation, 1995
14. Consulting and Audit Canada, 2000 report
15. Consulting and Audit Canada, 2000 report
16. Consulting and Audit Canada, 2000 report.
17. Consulting and Audit Canada, 2000 report.
18. In Ontario, number of requests dropped 22% between 1995 and 1996. Some of this drop may be attributed to the higher fees introduced by the Government in January 1996.
19. Ontario introduced a complaint fee of $25in 1996.
20. The ceiling prescribed by regulations is expected to be in the £ 500 range.
21. Information and Privacy Commissioner of British Columbia, Order #0019, available at www.oipcbc.org
22. B.C. Ministry of Management Services, Corporate Privacy and Information Access Branch, "Guidelines for Determination of Fee Estimates", available at www.mser.gov.bc.ca/FOI_POP
23. Treasury Board Secretariat, InfoSource Bulletin No. 23 (http://infosource:gc.ca/info_5/bulletin-e.html)
24. Consulting and Audit Canada, 2000 report.
25. Consulting and Audit Canada, 2000 report, summary section.
