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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. On August 21, 1989, I issued Interim Order 86 in respect of this appeal. This Order constitutes my final order, and addresses all matters left unresolved at the time of the issuance of Interim Order 86. On December 6, 1988, the appellant wrote to the Ministry of Health (the "institution") requesting access to the following records: Copies of forms, documents, Terms and Conditions, Tenders, Waivers of Tender, Prospectuses of Tender, Requests for Tenders and/or Quotations, letterhead quotes, telephone quotes, and correspondence, pertaining to 'fee for service' contracts not performed by Ministry of Health - Finance and Administration Division & Health Insurance Division staff, whether let by Sealed Tender, Request for Project Proposal, Letterhead Quote or by Telephone Quote, for all services purchased from January 1, 1983 to the present, by all offices of the Health Insurance and Finance and Administration Divisions of the Ministry of Health, with no exclusions to all the above. On January 11, 1989, the then Freedom of Information and Privacy Co-ordinator for the institution (the "Co-ordinator") responded by providing the appellant with a fee estimate for the requested records in the amount of $9,503.80. The estimate was broken down as follows: photocopies $1,727.80 manual search 3,990.00 preparation including severances 3,396.00 programming 140.00 other costs 220.00 shipping costs 30.00 $9,503.80 On February 9, 1989, the appellant wrote to my office appealing the amount of the fee, and I gave notice of the appeal to both parties on February 20, 1989. Upon receipt of the appeal, the Appeals Officer assigned to the case asked the institution to provide him with a copy of the records at issue in the appeal. He also requested an explanation of the factors considered by the head when deciding to charge a fee. In response, a representative of the institution advised the Appeals Officer that the requested records had not been retrieved and reviewed prior to the issuance of the fee estimate; rather, the Co-ordinator had contacted the various branches and departments of the institution where the records were located, and asked them to provide him with an estimate of the costs involved in preparing the records for possible disclosure. The Co-ordinator simply consolidated these estimates and relayed the total estimated fee to the appellant in the January 11, 1989 letter. Although the fee estimate included charges for severing the records, this estimate was made without having reviewed the contents of the records. Consequently, the institution was unable to advise the appellant regarding the possible application of any of the exemptions contained in the Act , or whether any confidentiality provisions contained in other statutes would bar the institution from disclosing any of these records. The institution's position, as communicated to the Appeals Officer, was that the institution did not have to address the issue of the appellant's right of access to the records until the appellant paid a deposit equal to 50% of the estimated fee ($4,251.90). During the mediation process, it became clear that the appellant had a different impression. He advised the Appeals Officer that he thought all of the requested records would be released to him, unsevered, upon payment of the estimated fee. However, after he was informed that severances might in fact be made, the appellant indicated that he was not prepared to pay the fee unless and until he received an indication as to the nature and extent of exemptions which the institution might later apply. As a result, a mediated settlement was not effected. At this point, the Appeals Officer prepared a report which was sent to the parties with a letter dated April 28, 1989. This letter advised the parties that the appeal had reached the inquiry stage and invited each of them to make representations in response to issues raised in the Appeals Officer's Report. The Appeals Officer's Report asked the institution to respond to specific questions regarding the time and costs involved in locating and retrieving the requested records, and preparing them for disclosure. The institution responded to my request for representations; the appellant chose not to respond. At this point I would refer to my Interim Order 86 for the specifics of the institution's representations. Suffice it to say that the representations, in my view, were not sufficiently detailed nor responsive to the questions posed in the Appeals Officer's Report, and I found that the onus of proving the reasonableness of the fee estimate had not been discharged by the institution. Accordingly, at page 5 of my Interim Order 86, I ordered the institution to take the following action: 1. clarify the request with the appellant to ensure that both parties have the same understanding as to the scope of the appellant's request; 2. issue an "interim" section 26 notice to the appellant based on either a representative (as opposed to a random) sampling of the requested records, or consultations with individuals within the institution who are familiar with the requested records. This "interim" section 26 notice must advise the appellant whether access is likely to be given; 3. issue a revised fees estimate to the appellant under subsection 57(2) of the Act . This estimate must include a clear statement of how the estimate was calculated, and must solicit representations from the appellant regarding the head's discretion to waive fees under subsection 57(3). In compliance with the Interim Order, the institution clarified the request with the appellant and determined that both parties had correctly understood the nature of the requested records. On September 11, 1989, the institution also issued an "interim" section 26 notice based on a representative sampling of the requested records and consultations with individuals familiar with the requested records. According to this "interim" section 26 notice, the institution determined that severances pursuant to
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