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Document
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P-111
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File #
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890029
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Institution/HIC
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Human Resources Secretariat
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Summary
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Order 111 Appeal Number 890029 Human Resources Secretariat This letter constitutes my Order in your appeal from the decision of the Human Resources Secretariat (the "institution") regarding your request for information made under the Freedom of Information and Protection of Privacy Act, 1987 (the " Act "). The appeal file indicates that on October 27, 1988 you submitted a request to the institution asking for the following: (1) All records created in 1988 including reports, studies, statistical surveys, projections, plans proposals, contentious issue reports and briefing notes relating to the following: (a) compensation and benefits for professionals within the Ontario public service; (b) the current and proposed Government of Ontario's compensation plan and classification scheme for lawyers it employs; (c) salaries paid and benefits provided to Ontario Government lawyers in comparison to non-Ontario Government lawyers. (2) This request is to exclude the Weiler report itself, and the submissions made by any groups to Mr. Weiler but to include any submissions or representations made by or on behalf of the Government. On November 4, 1988, you wrote to the institution, and stated, in part, the following: This letter is a request pursuant to subsection 57(3) of the Act to waive the payment of all amounts required to be paid under the Act. Our Association has been given a mandate by Management Board to bargain on behalf of all lawyers employed by the Ontario government. In order to properly perform that function we must assemble and consider a large amount of information. Any substantial payments required under the Act will cause financial hardship for our organization. ...Our negotiations are being conducted in a cooperative and collegial atmosphere. I request that the head of the Ministry or institution grant our request for a waiver on the grounds of fairness and equity in light of the spirit of our ongoing negotiations. On January 27, 1989, the institution responded to your request by indicating, in part, as follows: ...partial access to your requests has been granted. The partial access to records relates to part 1(a,b and c) of your requests. In accordance with subsection 29(1)(a) of the Act, access cannot be provided to records requested in part 2 of your requests because the records do not exist. The fee for providing this service is $480.00 and is calculated as follows: Request for 1987 records a) Search charge to locate records 2 hours @ $24.00 per hour = $48.00 (less first 2 hours free) = -48.00 TOTAL: nil Request for 1988 records a) Search Charge 20 hours @ $24.00 per hour = $480.00 (less first 2 hours free) = - 48.00 $432.00 b) Cost of preparing record 2 hours @ $24.00 per hour = $48.00 $480.00 ...Upon receipt of your cheque or money order, you may view the original record as requested at... On February 15, 1989, you wrote to me appealing the decision of the institution. You appealed both the Head's failure to waive the fee charged for access to those records to which access was granted and the denial of access to certain records. In regard to the fee, you stated the following: The Head erred in failing to waive the fee charged for access despite a written request to do so and accordingly the Head has acted in an arbitrary and inconsistent manner since similar requests have been granted in the past. As you are aware, as soon as your appeal was received by my office, an Appeals Officer was assigned to investigate the circumstances of the appeal and attempt to mediate a settlement. It was agreed that the issue of fee waiver would be dealt with as a preliminary issue, in this appeal, leaving a resolution of the substantive issues related to the denial of access to records to be resolved afterwards, if necessary. Although you did not take issue with the quantum of the fees assessed, in addition to soliciting submissions on the issue of waiver, the institution was asked to provide a description of how the fee estimate was calculated. When it appeared that no settlement could be achieved, the Appeals Officer prepared a report which was sent to you and the institution with my letter of August 16, 1989, requesting representations on these matters. I have received and reviewed these representations. Subsection 57(1) of the Act reads as follows: (1) Where no provision is made for a charge or fee under any other Act, a head may require the person who makes a request for access to a record or for correction of a record to pay, (a) a search charge for every hour of manual search required in excess of two hours to locate a record; (b) the costs of preparing the record for disclosure; (c) computer and other costs incurred in locating, retrieving, processing and copying a record; and (d) shipping costs. The explanation of the fee, provided to me by the head, has satisfied me that the amount of the estimated fee was calculated in accordance with the Act and the regulation and that the head has properly exercised her discretion under subsection 57(1) to charge a fee. Subsection 57(3) of the Act reads as follows: A head may waive the payment of all or any part of an amount required to be paid under this Act where, in the head's opinion, it is fair and equitable to do so after considering, (a) the extent to which the actual cost of processing, collecting and copying the record varies from the amount of the payment required by subsection (1); (b) whether the payment will cause a financial hardship for the person requesting the record; (c) whether dissemination of the record will benefit public health or safety; (d) whether the record contains personal information relating to the person who requested it; and (e) any other matter prescribed in the regulations. The Act is silent as to who bears the burden of proof in respect of subsection 57(3) however, it is a gener
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Legislation
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Subject Index
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Signed by
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Sidney Linden
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Published
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Nov 06, 1989
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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