Fees, Estimates & Waivers Led by Larissa McWhinney Office of the Information & Privacy Commissioner of Saskatchewan April 29, 2009.

11

Fees, Estimates & Fees, Estimates & WaiversWaivers

Led by Led by Larissa McWhinneyLarissa McWhinney

Office of the Information & Privacy Office of the Information & Privacy Commissioner of SaskatchewanCommissioner of Saskatchewan

April 29, 2009April 29, 2009

22

Operating PrinciplesOperating Principles

Fees should not be a deterrent to Fees should not be a deterrent to accessaccess

Fees should encourage applicants Fees should encourage applicants to be reasonableto be reasonable

33

Operating Principles Operating Principles cont.cont. SK OIPC Report F-2005-005, para SK OIPC Report F-2005-005, para

24: 24:

– ““I want to ensure that fees do not I want to ensure that fees do not present an unreasonable barrier to present an unreasonable barrier to access to information...Consequently, access to information...Consequently, this office will expect that fees should this office will expect that fees should be reasonable, fair and at a level that be reasonable, fair and at a level that does not discourage any resident does not discourage any resident from exercising their rights” ......from exercising their rights” ......

44

Operating Principles Operating Principles cont.cont. SK OIPC Report F-2005-005, para SK OIPC Report F-2005-005, para

24:24:

– ““At the same time, the fee regime At the same time, the fee regime should promote and encourage should promote and encourage applicants to be reasonable and to applicants to be reasonable and to cooperate with government cooperate with government institutions in defining and clarifying institutions in defining and clarifying their access requests.” their access requests.”

55

Operating Principles Operating Principles cont.cont. ““The fee system is not designed to The fee system is not designed to

generate revenue for governments...” generate revenue for governments...” – – former Federal Info. Comm. John Reidformer Federal Info. Comm. John Reid

““The current fee structure was chosen The current fee structure was chosen as the best balance between limiting as the best balance between limiting resources implications...and providing resources implications...and providing access to information...” – access to information...” – Minister of Minister of Supply and Services CanadaSupply and Services Canada

66

Barriers to AccessBarriers to Access

Fees and delays are biggest barriers to Fees and delays are biggest barriers to access; access;

Can go hand-in-hand: Can go hand-in-hand: – Inferior record management and lack of Inferior record management and lack of

familiarity with exemptions, etc., can familiarity with exemptions, etc., can cause delays cause delays andand inappropriately higher inappropriately higher fees/estimates. fees/estimates.

Proper record management and Proper record management and knowledge of exemptions, etc., is key knowledge of exemptions, etc., is key to appropriate fees, and lack thereof to appropriate fees, and lack thereof cannot be a factor in higher estimates. cannot be a factor in higher estimates.

77

Fees in the ActsFees in the Acts

FOIP: section 9; FOIP: section 9; Regs: sections 6-8; Regs: sections 6-8;

LA FOIP: section 9; LA FOIP: section 9; Regs: sections 5-7;Regs: sections 5-7;

HIPA: section 39HIPA: section 39

88

Fees in the Acts cont.Fees in the Acts cont.

FOIP and LA FOIP Regs detail FOIP and LA FOIP Regs detail compensable activities; compensable activities;

HIPA only says: “a trustee may charge HIPA only says: “a trustee may charge a reasonable fee not exceeding the a reasonable fee not exceeding the prescribed amount to recover costs prescribed amount to recover costs incurred in providing access to a incurred in providing access to a record containing personal record containing personal information.” information.”

99

Fees in the Acts cont.Fees in the Acts cont.

As of now, no “prescribed amount” As of now, no “prescribed amount” in HIPA; in HIPA;

SK OIPC Report H-2006-001, para SK OIPC Report H-2006-001, para 50: 50: – Trustees should “ensure that they are Trustees should “ensure that they are

in line with charges permitted under in line with charges permitted under FOIP and LA FOIP.” FOIP and LA FOIP.”

– $50 fee to “open” a file is excessive; $50 fee to “open” a file is excessive; – $500 for IME is excessive; $500 for IME is excessive;

1010

Types of FeesTypes of Fees

Application FeesApplication Fees Search FeesSearch Fees Preparation FeesPreparation Fees Reproduction FeesReproduction Fees

No fees No fees other than application feesother than application fees can can be charged if access is denied. be charged if access is denied.

1111

Application FeesApplication Fees

None in FOIPNone in FOIP $20 in LA FOIP$20 in LA FOIP None in HIPA currentlyNone in HIPA currently

Non-refundable if access denied. Non-refundable if access denied.

1212

Search FeesSearch Fees

FOIP – 2 hours free (or preparation)FOIP – 2 hours free (or preparation) LA FOIP – 1 hour freeLA FOIP – 1 hour free

FOIP & LA FOIP: $15 per half hour thereafter FOIP & LA FOIP: $15 per half hour thereafter only only for search in well-managed recordsfor search in well-managed records; ;

– ““Applicants should...not [bear] costs arising Applicants should...not [bear] costs arising from administrative inefficiencies or poor from administrative inefficiencies or poor records management practice” – SK OIPC records management practice” – SK OIPC Report 2005-005, para 21, quoting from AB Report 2005-005, para 21, quoting from AB FOIP Bulletin. FOIP Bulletin.

No search fees for off-site travel. No search fees for off-site travel.

1313

Preparation FeesPreparation Fees

FOIP – 2 hours free (or search)FOIP – 2 hours free (or search) LA FOIP – 1 hour free (or search)LA FOIP – 1 hour free (or search) $15 per half hour thereafter $15 per half hour thereafter for physical severing for physical severing

timetime; ;

Not for considering exemptions; Not for considering exemptions; Not for identifying 3Not for identifying 3rdrd party records; party records; Not for time spent proofing/photocopying; Not for time spent proofing/photocopying;

NB: “search” and “preparing” time should be NB: “search” and “preparing” time should be clearly distinguished in fee estimate (see SK OIPC clearly distinguished in fee estimate (see SK OIPC Report 2005-005, para 50). Report 2005-005, para 50).

1414

Reproduction FeesReproduction Fees

See FOIP Regs 6(1) and LA FOIP Regs 5(2) for See FOIP Regs 6(1) and LA FOIP Regs 5(2) for details; details;

6(3)/5(2) – refer to costs for electronic 6(3)/5(2) – refer to costs for electronic retrieval; retrieval;

These clauses considered obsolete (SK OIPC These clauses considered obsolete (SK OIPC Report 2005-005, paras 53-54): Report 2005-005, paras 53-54):

– These sections “contemplate recourse to remote These sections “contemplate recourse to remote equipment that involves data sorted in a fashion that equipment that involves data sorted in a fashion that restricts access to dedicated computer technicians. restricts access to dedicated computer technicians. I find that 6(3) would not have been intended to I find that 6(3) would not have been intended to address the contemporary situation where office address the contemporary situation where office workers have ready access via desktop workers have ready access via desktop computers...”computers...”

Cannot charge for shipping costs; Cannot charge for shipping costs;

1515

Appropriate FeesAppropriate Fees

Should include break-down of: Should include break-down of:

– Time required to search electronic Time required to search electronic records; records;

– Time required to search physical Time required to search physical records; records;

– Time to physically sever if necessary; Time to physically sever if necessary; – Number of employees involved; Number of employees involved; – Reproduction costs. Reproduction costs.

1616

Inappropriate Fees Inappropriate Fees No fees can be charged for (SK OIPC No fees can be charged for (SK OIPC

Report 2005-005): Report 2005-005): – Discussing scope of request with applicant; Discussing scope of request with applicant; – Searching through badly organized files; Searching through badly organized files; – Travel time for searches (offsite); Travel time for searches (offsite); – Identifying 3Identifying 3rdrd party records; party records; – Considering exemptions; Considering exemptions; – Consultations with senior staff; Consultations with senior staff; – Preparing index of records and submission; Preparing index of records and submission; – Time spent photocopying and packaging; Time spent photocopying and packaging; – Shipping costs. Shipping costs.

1717

Burden of ProofBurden of Proof

No explicit reference to burden of No explicit reference to burden of proof for fees in the Acts; proof for fees in the Acts;

Burden of proof regarding exemptions Burden of proof regarding exemptions to access in general is on to access in general is on head/trustee; head/trustee;

By extension, burden of proof for By extension, burden of proof for justifying fees is also on the justifying fees is also on the head/trustee. head/trustee.

1818

Duty to AssistDuty to Assist

Specify & Clarify!Specify & Clarify!

FOIP & LA FOIP section 6(1)(b): FOIP & LA FOIP section 6(1)(b): – Applicant must “specify the subject matter Applicant must “specify the subject matter

of the record requested with sufficient of the record requested with sufficient particularity as to time, place and event to particularity as to time, place and event to enable an individual familiar with the enable an individual familiar with the subject matter to identify the record.”subject matter to identify the record.”

HIPA section 34(2)(b): HIPA section 34(2)(b): – Written request for access must “contain Written request for access must “contain

sufficient detail to enable the trustee to sufficient detail to enable the trustee to identify the PHI requested.” identify the PHI requested.”

1919

Duty to Assist, cont.Duty to Assist, cont.

FOIP & LA FOIP 6(3): FOIP & LA FOIP 6(3): – ““Where the head is unable to identify Where the head is unable to identify

the record requested, the head shall the record requested, the head shall advise the applicant, and shall invite advise the applicant, and shall invite the applicant to supply additional the applicant to supply additional details that might lead to details that might lead to identification of the record.”identification of the record.”

No equivalent in HIPA; should be No equivalent in HIPA; should be best practice; best practice;

2020

Duty to Assist, cont.Duty to Assist, cont.

Should make it a general practice to Should make it a general practice to contact applicant to clarify request, contact applicant to clarify request, even if sufficient specificity is even if sufficient specificity is provided; provided;

Applicants not always aware of how to Applicants not always aware of how to make a request, and don’t know how make a request, and don’t know how records are filed; often ask for more or records are filed; often ask for more or less than they need; less than they need;

In the course of specifying and In the course of specifying and clarifying, narrowing may occur, clarifying, narrowing may occur, reducing resources and fees. reducing resources and fees.

2121

Fee estimatesFee estimates

Purpose: Purpose: 1.1. Gives applicants incentive and opportunity to Gives applicants incentive and opportunity to

modify request if necessary; modify request if necessary; 2.2. Prevents public body from doing more initial Prevents public body from doing more initial

work than necessary; work than necessary;

Must provide estimate when projected Must provide estimate when projected costs over $50; costs over $50;

Should provide between days 3-10 (see Should provide between days 3-10 (see Access Request Checklist Access Request Checklist from Justice); from Justice);

30-day timeline paused while applicant 30-day timeline paused while applicant considers estimate, then resumes. considers estimate, then resumes.

2222

Fee Estimates, cont.Fee Estimates, cont.

Deposit of no more than ½ estimate can Deposit of no more than ½ estimate can be required before continuing (FOIP be required before continuing (FOIP 9(2)); 9(2));

Can not ultimately charge more than fee Can not ultimately charge more than fee estimate;estimate;

Must charge less than estimate if actual Must charge less than estimate if actual costs are less than estimated costs costs are less than estimated costs (FOIP Regs 7(2)); (FOIP Regs 7(2));

No fees other than application fees can No fees other than application fees can be charged if access denied.be charged if access denied.

2323

Interim Notice

Should be provided at same time as fee estimate;

Should give indication of whether records are likely to be released;

Should attempt to forecast applicable exemptions (not reviewable by OIPC);

Should include right of fee estimate review by OIPC;

Should include further invitation to specify & clarify;

Should include request for fee waiver substantiation if fee waiver has been requested...

2424

Fee Waiver

Heads must pay attention to access request to see if fee waiver is requested (2007-001);

Trustees should give applicants the option of requesting waivers;

Fee waiver requirements should be requested at the same time as estimate and interim notice are provided unless total costs are $50 or less, in which fee waiver should be considered as soon as that is known;

2525

Fee Waiver Criteria

In spirit of the Acts, fees can be waived where appropriate in eyes of head/trustee;

Considerations might include:

– Whether waiver would be appropriate in response to undue delays;

– Whether waiving fees would be inappropriate due to extent of required search and responsive records (2005-005, para 22);

2626

Fee Waiver Criteria, cont. FOIP & LA FOIP Regs require heads

to consider waiving fees when: 1. Actual fees more/less than prescribed

fees; 2. Actual fee is less than $10; 3. Fees will cause applicant “substantial

financial hardship;” and either

(a) request is for personal records; or(b) request is in the public interest.

2727

Fee Waiver Criteria, cont. Burden of proof on applicant to

meet conditions for fee waivers;

However, public body must assist by indicating what evidence is required, e.g., criteria for:

Substantial financial hardship; Public interest...

2828

Fee Waiver Criteria, cont. No statutory indication of what is

required to meet fee waiver criteria;

Re: substantial financial hardship, OIPC position is that least amount of PI should be requested to meet the burden;

Where possible, rely on already established indications (welfare, LICOs, etc.);

2929

Fee Waiver Criteria, cont. Where public interest is involved

(where request for general as opposed to personal files), request applicant to meet that test before requiring PI for financial hardship test;

No statutory requirements for what to consider for public interest test;

Alberta’s OIPC suggests a number of considerations...

3030

Fee Waiver Criteria, cont. Public interest considerations:

– What is the likelihood that applicant will disseminate contents of record?

– Will members of the public benefit from disclosure?

– Has access to similar records been given at no cost?

– Would waiving fee shift unreasonable burden from applicant to public body?

3131

Fee Waiver Process

Clock pauses between time that applicant is advised of what to submit for fee waiver application and actual submission of data – then resumes;

Responses, or lack thereof, to fee waiver requests are reviewable.

3232

Relevant Reports

SK OIPC F 2005-005 SK OIPC LA 2005-003 SK OIPC F 2007-001 SK OIPC H 2008-001 SK OIPC H 2006-001 SK Annual Report 2004-2005 Ontario ORDER PO-2299

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Next BBL

May 27, 2009 Duty to Assist To register, contact Aaron Orban

at: 798-4155 or [email protected].

Thank you for your participation!