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Document
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P-608
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File #
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P-9300429
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Institution/HIC
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Ministry of Environment and Energy
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Summary
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ORDER BACKGROUND: The Ministry of Environment and Energy (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for: Copies of all studies prepared by the Ministry of Natural Resources, the Ministry of Environment and Energy, and outside consultants relating to the site for the new Ministry office in Peterborough, Ontario (site located at Charlotte and Water Streets). The Ministry acknowledged the request and provided a fee estimate of $90 comprised of $60 for the photocopying of 300 pages at $0.20 per page and $30 for record preparation time of one hour at $30 per hour. In its fee estimate, the Ministry advised the requester of his right to request a waiver of the fees. The requester replied that, as a Member of the Legislative Assembly, he should not be required to pay for access to records responsive to his request and requested a waiver of the fee. The Ministry responded that neither section 57 of the Act nor the Regulations promulgated under the Act provide that Members of the Legislative Assembly are exempt from the payment provisions contained in the legislation. Consequently, the Ministry refused to waive the fee. The requester appealed this decision to the Commissioner's office. During the mediation stage of the appeal, it was established that the appellant also wished to appeal the Ministry's decision respecting the amount of the fee charged to him. Further mediation was unsuccessful and notice that an inquiry was being conducted to review the decisions of the Ministry was sent to the appellant and the Ministry. Representations were received from both parties. In its representations, the Ministry indicated that it would be prepared to grant to the appellant full access to the requested records once the required fee was paid. ISSUES: The issues arising in this appeal are as follows: A: Whether the amount of the fee charged was calculated in accordance with section 57(1) of the Act . B: Whether the Ministry's decision to refuse to waive the fee was made in accordance with section 57(4) of the Act . SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the amount of the fee charged was calculated in accordance with section 57(1) of the Act . Section 57(1) of the Act states as follows: Where no provision is made for a charge or fee under any other Act, a head shall require the person who makes a request for access to 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. Section 6 of Regulation 460, made under the Act states, in part: The following are the fees that shall be charged for the purposes of section 57(1) of the Act : 1. For photocopies and computer printouts, 20 cents per page. ... 4. For preparing a record for disclosure, including severing a part of the record, $7.50 for each fifteen minutes spent by any person. In reviewing the Ministry's fee estimate, my responsibility under section 57(1) of the Act is to ensure that the amount estimated by the Ministry is reasonable in the circumstances. In this regard, the burden of establishing the reasonableness of the estimate rests with the Ministry. In my view, the Ministry discharges this burden by providing me with detailed information as to how the fee estimate was calculated and by providing sufficient evidence to support its claim. In its representations, the Ministry indicates that the record which is responsive to the appellant's request total some 300 pages. On this basis, I find that the fee of $60 for the photocopying of the responsive record is in accordance with section 6(1) of Regulation 460. The Ministry, in its representations, also describes the efforts undertaken by the staff of its Peterborough office to prepare the record for disclosure. As the original record was cerlox bound, it was necessary to disassemble the bindings in order to photocopy them. Copies of maps also had to be taped together as the Peterborough office is not equipped with a sufficiently large photocopier to reproduce full size copies of maps. I am satisfied that the estimate provided by the Ministry for the preparation of the record for disclosure is reasonable in the circumstances. Based on the representations of the Ministry, I am satisfied that the fee estimate provided by the Ministry is in accordance with section 57(1) of the Act . ISSUE B: Whether the Ministry's decision to refuse to waive the fee was made in accordance with section 57(4) of the Act . Section 57(4) of the Act reads as follows: A head shall 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; and (d) any other matter prescribed in the regulations. Section 8 of Regulation 460 states: The following are prescribed as matters for a head to consider in deciding whether to waive all or part of a payment required to be made under the Act: 1. Whether the person requesting access to the record is given access to it. 2. If the amount of a payment would be $5 or less, whether the amount of the payment is too small to justify requiring payment. It has been established in a number of orders that the person requesting the fee waiver has the responsibility to provide adequate evidence to support such a claim (Orders 10, P-425 and P-463). In its representations, the Ministry indicates that its decision not to waive the fee was based, in part, on the following considerations: 1. At the time the
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Jan 12, 1994
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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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