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Report 23 - Access to Information Review Task Force
ISSUES AND OPTIONS REGARDING FEES UNDER THE ACCESS TO INFORMATION ACT
6. Should there be different fee schedules for different
categories of requesters?
The Government's Green paper outlined the possibility of charging a higher fee to corporations, unions and other organizations (not including the media) but dismissed this option (largely because such a requirement would be easy to evade and difficult to administer).
ATI Coordinators perceive that there is an increase in professional applicants and business or commercial users, according to data available from TBS, business users now make up 41% of all users. According to the CAC study on costs, requesters in this group tend to make multiple requests and generate a higher proportion of the ATI costs than their proportion of total requests (26). This may be reflective of a higher level of complexity of requests or a greater tendency to make broad or omnibus types of requests. Some ATI Coordinators suggest that special fees should be created for applicants who are in the business of selling the information they obtain under ATI.
In the U.S., differential fee schedules are applied. In B.C., the regulations allow the actual cost of services to be charged to commercial users. In Ontario, an increase in fees in 1996 resulted in a drop of individuals/general public but the business applicants did not seem to be affected. The justification for a different fee schedule for commercial users is that the applicant's motive is the pursuit of profit, rather than being motivated by the public interest, and that all taxpayers should not pay for an essentially private benefit. However, the federal Information Commissioner argues that from the beginning it was recognized that entrepreneurs would make use of the Act to obtain information for commercial purposes. In an address to the Advisory Committee of Assistant Deputy Ministers on the Access to Information Review, he stated that "it makes economic good sense to allow entrepreneurs to "mine" government holdings for saleable information: first, new information businesses pay taxes and the tax system is a more effective revenue collector than would be even the highest of access fee regimes." (27)
The Information, Law and Privacy Section of the Department of Justice has stated that introducing differential fees for different categories of users would be a substantial departure from the original intent of the law.
The Australian Law Reform Commission, in its examination of the Australian access law, argued that it would be too complex to administer a fee structure that singled out certain users for higher fees, and in many cases, to determine the applicant's motive.
Summary: some jurisdictions have established a differential fee for commercial applicants. However the research suggests that this may be complex to administer, easy to undermine, and fall outside the original intent of the Act (the "purpose" of the request should not influence the determination of access or refusal of access).
Return to table of Contents
7. Where are the gaps in the legislation? How can the
legislation be improved to encourage focussed requests and ease of implementation?
Frivolous or vexatious requests:
Simplification of the administration of fees payable under the Act is critical. The research shows that the objective of fee schedules is to reduce the overhead costs in the processing of applications, and ensure that there is an ability to reduce incidents that abuse the right of access. Recent changes to the U.S. law, the new Access law in the U.K., and the Australian law reflect provisions that are intended to reduce abuse of the access system. These laws exempt public agencies from responding to frivolous or repetitive/vexatious requests and allow the aggregating of the costs of numerous requests by the same person. The ATIA does not contain such provisions.
It may be that the frustration of dealing with repetitive or frivolous requests has created some animosity, and uncooperativeness on the part of federal departments. With no direct means of disregarding requests, frustration may lead to abuse of the fee estimate system and lack of responsiveness on the part of some government departments.
The Ontario Act was amended to include provisions relating to frivolous or vexatious requests in 1996. The B.C. and Alberta legislation contains similar restrictions. The standards for frivolous or vexatious requests are reproduced in Ontario Order M-1071. According to the Ontario Commissioner, the request must be "part of a pattern of conduct that amounts to an abuse of the right of access or would interfere with the operations of the institution, or that the request is made in bad faith or for a purpose other than to obtain access." (28)
Ontario order M-1071 provides some evidence that fees can be used as a relief measure or a deterrent for frivolous or vexatious requests, specifically those that may interfere with operations. The Commissioner stated that the fee provisions are intended to support a "user pay" principle, and could be used to greatly lessen any possible interference. The order makes clear that an interim access decision and fee estimate can be used to encourage requesters to focus very large requests, or requests that are unlikely to result in the release of any significant information.
Summary: The addition of provisions to limit abuse of the access system, with the appropriate oversight of the Information Commissioner would bring the federal regime in line with other jurisdictions. The addition of these provisions may serve to lessen the frustration of departments. Applicants could be assured of fair treatment with the appropriate oversight of the Information Commissioner.
No provision to charge for new forms of records
The regulations provide specific costs for specific media typically used for the retention and transmission of records. The federal legislation does not allow for the recovery costs for items not specifically prescribed. The regulation should allow for new media such as CD-ROM, video and compact disc. Other laws address this problem by stating that if other methods of reproduction or duplication exist, agencies should charge the actual cost of reproduction. This is a practical approach that does not need to be regularly updated. However, if the ALRC model is applied, the fee schedule may need to be media-independent
Fees out of date:
The current fee schedule appears to be out of date in comparison with other statutes. For example, the $10 per hour search fee was identified by ATIP Coordinators as below market. If the fee were based on a $40,000 salary, the rate would be $30 per hour. Computer programming time at the current rate of $20 per hour appears to be out of date. Ontario charges $60 per hour and in the U.S. time is charged at a recover of the actual salary of staff/contractor's time. (29) The $.20/page duplication fee is not reflective of the actual cost of reproduction which is close to one million dollars. Recent studies by the National Archives indicate that the actual cost of duplication is closer to $.26 per page. An all-encompassing fee structure (see discussion of ALRC model in section 5 above) would resolve this issue. In determining the fee structure (which could be revisited and revised periodically) reproduction fees would be taken into consideration in determine the average "hard costs' of reproduction and would include a sliding scale for volume.
Summary: The schedule should be compared to recent studies of reproduction costs undertaken in other jurisdictions.
CONCLUSION:
Most Commissioners and policy makers have stated that appropriate fees are essential for the administration of the Act, and that public bodies are entitled to recover some of their actual costs. However, it will be important to balance any increase to the fee schedule or limitations to access, with the criticism over public concerns about the accessibility of public information.
The objective of the fee schedule appears to be a well-functioning and sustainable access system with the best combination of encouraging accessibility and encouraging focused requests. It is also vitally important that the fee schedule be accepted 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.
With regard to the administration of the fee waiver, the current criteria are too broad, resulting in users complaining that the waiver is inconsistently applied. However, departments and agencies require some discretion to deal with individual circumstances. The new criteria should address financial hardship and requests for information that is in the public interest
An improved fee structure with more precise waiver criteria would assist ATI Coordinators in applying fees in a balanced way.
References
Armstrong, Wendy. (May 28, 2001). Interview with Canadian Association
of Consumers National and CAC, AB
Information Commissioner. (2001) Address to Assistant Deputy Ministers
(online) Available: http://www.atirtf-geai.gc.ca/
B.C. Information and Privacy Commissioner. (1995). Inquiry re: The
City of Vancouver's denial of the New Democrat Government Caucus's
Request for a fee waiver. Order No. 55-1995.
B.C. Legislative Debates. (1992). B.C. Attorney General Colin Gabelmann
in legislative debate over fees. 1st Session, 35th
Parliament. Hansard, Vol. 24. Victoria, Queen's Printer.
Government of Canada. (1977). Legislation on Public Access to Government
Documents. Supply and Services Canada. Ottawa, Ont.: Queen's Printer
Norman, Chris. (May 30, 2001). Interview with Director of Corporate Privacy and Information Access Branch, Government of B.C.
Roberts, Alasdair. 1998. Limited Access, Assessing the Health of
Canada's Freedom of Information Laws. Freedom of Information
Research Project. School of Policy Studies, Queen's University (online).
Available: http://www.atirf-geai.gc.ca
Notes for an address by Honourable Anne McLellan to the Canadian Bar Association, 2000 (online). Available: http://www.atirf-geai.gc.ca
Thackeray, Tom (May 2001). Interview with Executive Director of Information Management Privacy Branch, Government of Alberta.
Treasury Board of Canada. (1995). Review of the Costs Associated
with the Administration of the Access to Information and Privacy Legislation
(online). Available:
http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/manbetseries/VOL7_e.html
Treasury Board of Canada. Costs Associated with Administering ATIP Legislation [2000]. Ottawa, Ont.: Queen's Printer
Provincial Access and Privacy Commissioners' Orders:
Alberta Commissioner's Order: 2000-011
B.C. Commissioner's Orders: 00-19, 259-1998, 55-1995, 279-1998, 293-1999
Ontario Commissioner's Order: M-103, M-1018, P-1316, P-1296, M-1071, M-1087,
P-1387, PO-1682
Footnotes:
26. In 1998, business users made approximately 35% of the requests, while approximately 43% of the cost of the ATI system was attributed to responding to those requests. - Consulting and Audit Canada, 2000 report, Chapter 2.
27. Information Commissioner's address to the Access to Information Review Task Force's Advisory Committee of Assistant Deputy Ministers, Feb. 23, 2001. Internet: http://www.atirf-geai.gc.ca
28. Privacy Commissioner of Ontario, Order M-1071.
29. Consulting and Audit Canada (2000 report).
