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Access to Information: Making it Work for Canadians
Report of the Access to Information Review Task Force
For ease of administration and to make the structure understandable for requesters, we believe that there should be a single hourly rate prescribed in the Regulations for search and preparation for non-commercial requests and for search, preparation and review for commercial requests. The rate should reflect an indexing of the 1983 fee of $2.50 per quarter-hour, resulting in $5 per quarter-hour. This fee is much lower than actual cost recovery, but will still serve to encourage efficient use of the access system.
The reproduction rates currently listed in the Regulations do not include many of the newer media. Given that evolving technologies will likely lead to the creation and use of additional new media, it would make most sense to provide set fees for current common media (e.g. $0.20 per page of paper, $12 per 30.5-m roll of 35-mm microfilm), and establish a principle for charging for new media not yet listed (e.g. market value, or the price paid by the institution for the media, whichever is lower).
| 5-14 The Task Force recommends that the fee rates be updated to reflect inflation and the fee structure be updated to reflect the new media of reproduction. |
Return to Table of ContentsThe statistical analysis conducted for the Task Force found that less than 1.5 per cent of requests require a review of more than 1,000 pages, and less than 1 per cent result in a release of more than 1,000 pages.
Occasionally federal institutions have to deal with extremely large requests – one, dealing with softwood lumber, involves over one million records. The cost of processing this request alone is estimated to be $1.3 million, involving a team of 12 to 15 people and an extension of 2 years. David Flaherty, |
Rarely, institutions receive requests that cover several thousand pages. These requests, which are of a completely different order of magnitude than most, raise important questions about the sustainability of the access to information system. No institution has the resources to handle requests of this size in their budget. Such huge requests could therefore result in other requesters being expected to accept delays, taxpayers paying for the hiring of extra staff or contractors to do the work, or other programs being compromised.
Several jurisdictions have addressed this issue by allowing institutions to disregard extremely large requests. The Freedom of Information Act in the United Kingdom is the most precise: a public authority may charge an applicant full cost, or alternatively, does not have to comply with a request, where the cost of responding exceeds a set limit. At present, the limit is proposed to be £550 (about $1,100).
There have to be administrative limits on the scope and size of access requests, so as not to block more reasonable requests. It would likely be inappropriate for a department to expend all of its annual ATI resources on one request. Robert Gellman, quoted by Research Report 25 |
We do not believe that institutions should be allowed to refuse to process extremely large requests. We doubt, however, that the system can absorb them without problems. We believe that the people making requests of this size should pay for the extra staff required to process them. To ensure that this provision does not unreasonably interfere with the access rights of most requesters, the limit should be set high enough to affect only the small number of very large requests that the government receives each year. For the small number of requests with estimated processing costs of more than $10,000, we suggest that requesters have the option of narrowing their request, or accepting that the institution may charge them reasonable costs of processing (not the rate set in the Regulations).
To ensure effective monitoring of this provision, institutions’ annual reports to Parliament should include information on its use. If, in any given year, more than 2 per cent of all requests across government have been processed under this alternate fee structure, Parliament should consider it an indication of a systemic problem, and the level of the limit should be reviewed.
5-15 The Task Force recommends that:
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The Act currently gives the head of a government institution the discretion to waive or refund a fee. We have observed that waiver decisions are not made consistently across government, nor is there a coherent rationale for these
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Use of consistent, coherent and transparent factors by institutions in determining whether to waive fees, and what portion of chargeable fees it is appropriate to waive. |
decisions. It would be helpful if requesters and access to information officials shared an understanding of the factors normally considered in a decision on waiving fees. We believe the factors should include financial hardship to the requester, the public interest to be served by disclosing the information, whether the amount to be collected is less than the expected cost of administering the fee, and the timeliness of the response to the requester. The timeliness factor would mean that the further past the deadline the information is disclosed, the greater the portion of the fees that should be waived (e.g. a two-day delay would not be likely to result in a waiver of a significant portion of the fees, whereas a two-week delay would be more likely to result in a waiver of a higher proportion of fees). There should, of course, be flexibility in decisions on waiving fees, to reflect the various circumstances relevant to particular institutions and to specific requests. If an institution regularly considers additional factors, it should let requesters know what they are.
We found that many institutions do not record their reasons for waiving fees, or even expressly waive the fees. They just don’t collect them. In addition, we found that many institutions do not track the time spent processing requests once they have decided not to collect fees. The resulting lack of data makes it very difficult to assess the fee structure, the fairness in the application of fee waivers, or the time spent processing requests.
5-16 The Task Force recommends that:
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5-17 The Task Force recommends that institutions be required to:
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All requesters should be given the option, at their expense, of having information sent to them on an expedited delivery basis (e.g. courier, Expresspost, fax).
| 5-18 The Task Force recommends that requesters be given the option, at their own expense, of expedited delivery by the method of their choice. |
A Summary of the Proposed Fee Structure
The fee structure would include a $10 application fee, which would entitle non-commercial requests to up to five hours of search and preparation, and up to 100 pages of reproduction, after which they would pay the $5 per quarter-hour rate for search and preparation, and the set rates for reproduction. Commercial requests would pay the same application fee, then the $5 per quarter-hour rate for all reasonable time spent on search, preparation and review, and the set rates for all reproduction. Institutions would have the authority to charge up to full-cost recovery for any request (commercial or non-commercial) where the cost of processing exceeded $10,000. Institutions would have the flexibility to waive fees in keeping with published criteria for any type of request.
Requesters have the right to complain to the Information Commissioner about any aspect of the processing of their request. If our recommendations are accepted, they would also have the right to complain about being charged fees for a commercial request, being charged fees under the alternate fee structure for very large requests, or about having their requests aggregated. In Chapter 6, we will consider the desirability of allowing requesters to seek further review of such issues by the Federal Court once the Information Commissioner has made a finding.
The fees collected under the Act will never amount to more than a small fraction of the costs of the access to information process, however, the government should consider reinvesting them in ways that will improve the functioning of the access system, by financing such things as technology development or increased training.
| 5-19 The Task Force recommends that the government reinvest the fees collected under the Access to Information Act in ways that will improve how the system works. |
A high volume of small requests from one requester is likely to have the same impact on the system as one large request, diverting resources from other requests. For this reason, the United Kingdom, New Zealand and the United States have included provisions in their legislation allowing institutions to aggregate requests from the same requester or from multiple requesters acting together. We believe that this is a good approach. Such a provision in the Act, would allow institutions to extend the time-frame for responding, or to charge additional fees for the larger, aggregated request.
5-20 The Task Force recommends that
the Act be amended to authorize institutions to aggregate requests
where:
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The most helpful response nominated consistently by interviewees is the “call-back” in which an ATIP coordinator contacts the requester in a timely way, goes over the request, makes suggestions for improvement, and so on. Paul Attallah, Heather Pyman, |
At the beginning of this chapter we recommended that institutions be encouraged to regularly contact requesters to clarify their requests. While keeping in touch with the requester is always a good practice, we believe that there are circumstances where an institution should be required to contact a requester: before refusing to process the request, before aggregating the request with other requests, or before charging full-cost recovery. This requirement should be set out in the Act.
The Act should also be amended to require that the institution make a reasonable effort to assist an applicant upon request, and offer to help the requester reformulate the request in a way that will avoid the negative outcomes. In this way, the requester will be notified first of what the institution intends, and will have an idea of what could be done to have the request processed quickly and for the lowest possible fee.
5-21 The Task Force recommends that the Act be amended to:
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Our recommendations for the fee structure reflect the principles that access to information is not a cost-recovery program, and that requesters should contribute to the cost of providing information, but that fees should not deter individuals from seeking access. It is also appropriate to charge higher fees for commercial requests that will be used for private financial benefit, and to allow institutions to charge full cost-recovery for the small number of extremely large requests that place an unreasonable burden on an institution’s resources.
The length of time institutions are given to process requests would not change, but would be measured in working days instead of calendar days. Better communication between the institution and the requester would be required in some circumstances, and encouraged all the time.
We believe that the changes recommended in this chapter will improve
both the functioning of the process and the communication between requesters
and users. These changes would help provide the best possible service
to requesters, while ensuring that an effective access to information
system is maintained.
