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Document
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P-31
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File #
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880015
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Institution/HIC
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Ministry of Financial Institutions Pension Commission of Ontario
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Summary
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Order are as follows: On January 12, 1988, the Ministry of Financial Institutions' Freedom of Information Co-ordinator received a request for access, on a computer disc, to copies of the following forms for pension plans registered in Ontario with over 100 members: (a) Form 1 - Application for Registration of a Pension Plan; and (b) Form 2 - Annual Information Return. The Freedom of Information Co-ordinator for the Ministry of Financial Institutions also acts as Co-ordinator on behalf of the Pension Commission of Ontario ("the institution") which is an agency designated as an institution in Ontario Regulation 532/87, as amended, under the Freedom of Information and Protection of Privacy Act, 1987 . The Pension Commission of Ontario is the institution referred to in this Order and the Minister of Financial Institutions is the head of the Pension Commission of Ontario for purposes of the Act . By letter dated February 11, 1988, the institution provided the requester with a fee estimate of $21,000 for the requested records. This letter also explained that access could not be provided in the format requested as the institution was "currently replacing its computer system, and it will likely be 18 months before we could produce an accurate computerized listing such as you have requested." However, the institution also advised that the information could be provided manually and, - "this would take approximately 8 to 10 months to do, at an estimated cost of $21,000. This figure is based on the following assumptions: 2,000 registered pension plans with 100 or more members; 6 pages of documentation per plan @ 50 cents per page (rate prescribed in subsection 41(2) of Regulation 708 under the Pension Benefits Act ); 20 minutes processing time per plan @ $6.00 per quarter hour (subsection 5(2) of Regulation 532 under the Freedom of Information and Protection of Privacy Act ). The time estimate is based on an employee of the Pension Commission spending one-half of their working hours on your request." By letter to me dated February 19, 1988, the requester appealed the fee estimate stating that "the PCO is willing to provide this information but at a cost of $21,000 and this process will take 8 - 10 months. I feel this is unreasonable and ask that you review this decision." By letter dated February 23, 1988, I gave notice of the appeal to the institution. By letter dated April 6, 1988, the institution advised the appellant that with respect to the records in issue in this appeal, the estimated cost of $21,000 had been revised: "The current estimate is $18,400, based on copying charges of 20 cents per page (rather than 50 cents per page) for 12,000 pages plus search time for 669 hours (less 2 hours free) at $24.00 per hour." By letter dated August 26, 1988, I notified the appellant and the institution that I was conducting an inquiry into this matter and enclosed a copy of the Appeals Officer's Report that was prepared by my office. By letter dated October 4, 1988, I invited the appellant and the institution to make written representations to me. I received written representations from the institution. The representations received from the appellant did not address the issues arising in this appeal. The issues that arise in the context of this appeal are as follows: A. Whether the head exercised his discretion under subsection 57(1) not to charge a fee as well as to charge a fee; B. Whether the head has a duty to consider the application of subsection 57(3) (fee waiver) without any of the specific considerations enumerated thereunder being raised by the appellant; C. Whether the amount of the estimated fees was properly calculated; and D. Whether the head's decision that access to the records could not be provided for 8 - 10 months was reasonable. ISSUE A: Whether the head exercised his discretion under subsection 57(1) not to charge a fee as well as to charge a fee. Subsection 57(1) reads as follows: 57.--(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. In my Order in Appeal No. 880009 released July 18, 1988, I stated at page 4 that "the language of subsection 57(1), couched permissively as it is, provides the head with discretion not to charge a fee, without taking into account subsection 57(3)." (Subsection 57(3) provides for a waiver of payment). Further at page 5 of my Order, supra , I indicated that, "In my view, a head must make an initial decision to charge a fee or not to charge a fee based on all relevant factors in a particular case, which are not confined to the reasons set out in subsection 57(3)..." In this case, the head has submitted that he "properly exercised the discretion afforded him by the permissive language of subsection 57(1) of the Act by examining the actual costs, revising them and suggesting alternative means to satisfy the Requestor (sic) on a less costly and time consuming basis." In its representations, the institution states that the Superintendant of Pensions met with the appellant on April 11, 1988, to discuss whether or not the appellant could conduct his study under the research mandate of the Pension Commission set out in section 98 of the Pension Benefits Act, 1987 . Further, the institution indicated that "[t]his proposal would have provided the Requestor (sic) with ready access to the records in question at little or no fee and would have permitted the request
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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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Dec 21, 1988
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Type
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Order
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