Access to Information: Making it Work for Canadians

Report of the Access to Information Review Task Force

When Time Limits Are Not Met

The Task Force recognizes that the problem of not consistently meeting the legislated time limits is serious. Several proposals have been made for methods of dealing with delays, including the suggestion that institutions should lose the right to claim some or all exemptions when their response to a request is late. We do not agree that a government institution should be precluded from relying on the exemptions authorized by Parliament if a response is not provided within the statutory time limit. This is not because we condone delays; to the contrary. However, as explained in Chapter 4, exemptions are included in the Act to allow information to be withheld where it is in the public interest to do so. For this reason, preventing institutions from invoking exemptions would be likely to harm the public interest, rather than discipline the government institution.

Another suggestion has been made to remove the right of institutions to charge fees if the response to a request is late. We believe that this mechanism would not provide the right incentive to institutions to process requests in the shortest time, or to requesters to focus their requests. Later in this chapter, we will recommend that timeliness be considered as an important factor in determining whether an institution should waive fees.

Nevertheless, we believe that there are several related administrative steps that institutions can and should take to reduce the number of late responses to requests. More specifically, if an institution concludes that it will be unable to respond within the legislated time-frames, the Access to Information Policy should require that:

• the institution inform the requester in writing that the response will be late, the reason for the delay, when to expect a response, and that they can complain to the Information Commissioner;
  
  
• the institution provide the Information Commissioner with a copy of the letter, so that he can monitor the frequency with which institutions are late in responding;
  
  
• Access Coordinators report on a regular basis to their Deputy Minister, or equivalent, on the number of occasions on which the time limits were not met, and the reasons for the delays, in order to allow senior officials to monitor and address the issue in their institution; and
  
  
• this information be included in the annual access to information reports of each institution so that Parliamentarians are given a better understanding of how well the government is meeting the timeframes set out in the Act .
  

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Fees

Section 11 of the Act provides for an applicant to be charged an application fee, not to exceed $25, and also to be charged for:

• reasonable search and preparation time in excess of five hours;
  
  
• the costs of producing a record in an alternative format;
  
  
• the production of a machine-readable record; and
  
  
• reproduction costs

with specific amounts set by regulation. Heads of institutions have the authority to require applicants to pay deposits, or to waive or repay a fee.

The actual fees and charges in the Regulations have been virtually unchanged since 1983. They include an application fee of $5 and specific amounts for reproduction in various media (e.g. 20 cents per page of photocopying); producing records in alternative formats for disabled requesters (e.g. $2 per diskette); search and preparation time ($2.50 for every 15 minutes in excess of five hours); and producing from a machine-readable record (e.g. $5 for every 15 minutes of processing time). The same fee schedule is applied to any request; no distinction is made based on the purpose of the request, the size

of the request, or the type of information sought.

This fee schedule is one of the lowest in Canada (see the comparison chart of fees in Annex 2). A study of federal access to information requests in 1998-99³ found that applicants paid a total of $290,000, of which 23 per cent was application fees and 76 per cent was processing charges and reproduction. As the total direct cost of handling requests in that year was estimated to be $16.2 million, revenues represented only 1.8 per cent of direct costs.

The views on fees are so polarized, they are probably irreconcilable. Requesters believe they should be charged as little as possible, while institutions believe that the current fee structure is out of date and is not providing the right balance.⁴

Internationally, there is no standard for fees. Each jurisdiction has developed a

recipe of the activities for which charges are levied; the rates, the amount of the application fee, if any; the criteria for waiving fees; and whether any distinction will be made according to categories of requesters. Levels of fees also vary considerably across jurisdictions, and sometimes among institutions within a jurisdiction, but rarely approach any level of significant cost recovery, except in special circumstances.

While the Access to Information Act provides that government information should be available to the public, with specific and limited exceptions, it was never intended that there would be no charge for such information. It must be recognized, however, that a strict application of the user-pay principle would almost certainly mean that the Act would fail in its objectives. On the other hand, totally free access would put an unreasonable financial and administrative burden on institutions.

In the view of the Task Force, the fee structure should:

• be compatible with the objective of providing access to information to Canadians;
  
  
• contribute to the sustainability of the system of access to government information;
  
  
• encourage efficiency in the framing and handling of requests; and
  
  
  
• encourage a principled and consistent approach to the waiving of charges.

In consideration of these principles, the Task Force is recommending a new fee structure which differentiates between commercial requests and general requests, provides a separate fee structure for extremely large requests, and provides incentive for focused requests:

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Application Fee

The Task Force considered whether or not there should be an application fee.

Experience here and in other jurisdictions has shown that a modest application fee can help to deter frivolous requests without interfering with the widespread use of the Act. In our proposed structure, most general requests would not require any additional payment beyond the application fee.

It is worth noting that although the Act allows for a fee of up to $25, the application fee has remained at $5 since 1983. It would be appropriate now to set it at $10 in order to index it to reflect inflation. The government may want to consider further indexing at appropriate intervals, possibly every five years.

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A Differential Fee Structure – Commercial and General Requests

Unlike the Canadian law, the legislation in some other jurisdictions (such as British Columbia, the United States and New Zealand) have established fee structures that differentiate between categories of requests. Currently, approximately 40 per cent of requests under the Act are made for commercial purposes (e.g. corporations seeking information on a competitor’s bid on a contract, or requests for information which the requester will repackage for sale), and that proportion appears to be growing.

There is nothing wrong with this. Such requests can encourage competitiveness, as well as transparency between business and government. Commercial requests were anticipated by Parliament when the Act was passed. What we need to consider is whether it is appropriate for the public purse to continue to underwrite these types of requests to the extent it does now.

In light of the public policy objectives of a legislated right of access, we have concluded that for the purpose of charging fees, it is appropriate to differentiate in this way. We believe the distinction should be between requests made primarily to further commercial interests, and those made primarily to further the public interest or to inform individuals.

It should be made clear that the types of requests normally received from academics, the media, Parliamentarians, non-profit public interest organizations, and members of the general public for their own use, are not commercial requests.

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Encouraging Focused Requests

The vast majority of access requests are quite small. A statistical analysis of 11,500 requests conducted for the Task Force found that 80 per cent of requests require less than five hours of search and preparation time, and result in the review and release of fewer than 100 pages of records. Such well-focused requests should be encouraged; so we suggest that no additional fees be charged to them beyond the $10 application fee. These requests should continue to receive up to five free hours of search and preparation time. In addition, we recommend that they receive up to 100 pages of reproduction (or equivalent in other media) for no additional fees.

This would make the system as easy, predictable and inexpensive as possible for the vast majority of non-commercial requests. It would also provide an incentive for requesters to try to frame requests that require no more than five hours of search and preparation (and access officials should assist them in doing so). General requests that require more than five hours of search and preparation would be charged the prescribed rate for the additional hours. Those requests resulting in more than 100 pages of reproduction would be charged the set rate for the additional pages.

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A Fee Structure for Commercial Requests

Jurisdictions that have established differential fee structures (such as the U.S. and B.C.) recognize that while there is a general right to information, it is being used in some cases mainly to further private commercial interests. In such cases, the fees are considered as a cost of doing business, and we believe that the fees levied should better reflect the cost of providing the information.

The fee structure for commercial requests should cover all reasonable time spent on searching and preparing records, as well as time spent reviewing records for release, at the hourly rate prescribed in the Regulations. Commercial requesters should also pay the set rates for reproduction of all the records they receive.

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³Consulting and Audit Canada, Review of the Costs Associated with Administering Access to Information and Privacy (ATIP) Legislation, Treasury Board Secretariat 2000, Research Report 11.

⁴Given such views, and the strength of people’s conviction, the number of fee-related complaints is surprisingly low (4 per cent of complaints in 2000-2001). This may, however, be a result of the high rate of fee waivers.