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Summary
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NATURE OF THE APPEAL: The Ministry of Health and Long Term Care (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for the following information: I request access to all records, including but not limited to, Request For Proposals, contracts, invoices, timesheets, reports and memos, related to consultants hired for the province’s E- Physician Project, including Smart Systems for Health. I request a list of all consultants hired by the project as well as their total billings to date and a breakdown of those amounts. The Ministry responded by issuing an interim access decision and fee estimate. The decision advised the requester that, based on consultations with appropriate staff and a review of a sample package of responsive records, he would likely be given access to portions of the various records, with other portions withheld on the basis of the exemptions in sections 17(1) (third party commercial information) and 21 (invasion of privacy) of the Act . The Ministry also advised the requester that an estimated fee in the amount of $8,820 would be charged by the Ministry to search for, prepare and copy the records, and asked for a deposit of 50% of the estimated fee. Finally, the Minister informed the requester that he could apply for a fee waiver, pursuant to section 57(4) of the Act . In response, the requester narrowed the scope of his request to include the following: A list of all consultants hired for the E-Physician Project A description of what each consultant was hired to do; and How much each consultant was paid or is being paid. The Ministry then issued a new interim access decision and revised fee estimate. The same two exemptions were identified for certain records, but the fee estimate was reduced to $1,788.14. Again, the requester was asked to pay a deposit representing 50% of the fee estimate ($894.07) and was reminded that he could ask for a fee waiver. The fee was later revised to $1,785. The requester, now the appellant, appealed the amount of the revised fee estimate. During mediation, the appellant submitted a fee waiver request to the Ministry, which it denied. Further mediation was not successful and the appeal was transferred to the adjudication stage. I started my inquiry by sending a Notice of Inquiry to the Ministry setting out the facts and issues in the appeal and seeking written representations. The Ministry responded, and I sent its representations to the appellant, along with a copy of the Notice. The appellant also provided representations, which were in turn shared with the Ministry. The Ministry provided reply representations. The appellant was offered an opportunity to provide a final set of representations in reply, but declined to do so. The issues before me in this appeal are: Did the Ministry issue an adequate interim access decision letter? Should the Ministry’s fee estimate be upheld? Is the appellant entitled to a fee waiver? DISCUSSION: INTERIM ACCESS DECISION General principles Where a fee exceeds $100, an institution may choose to do all the work necessary to respond to the request at the outset. If so, it must issue a final access decision. Alternatively, the institution may choose not to do all of the work necessary to respond to the request, initially. In this case, it must issue an interim access decision, together with a fee estimate [Order MO-1699]. Also, where the fee is $100 or more, the institution may require the requester to pay a deposit equal to 50% of the estimate before the institution takes any further steps to respond to the request (see section 7 of Regulation 460). The purpose of the fee estimate, an interim access decision and deposit process is to provide the requester sufficient information to make an informed decision as to whether or not to pay the fee and pursue access, while protecting the institution from expending undue time and resources on processing a request that may ultimately be abandoned [Order MO-1699]. An interim access decision is based on a review of a representative sample of the requested records and/or the advice of an individual who is familiar with the type and content of the records. An interim access decision must be accompanied by a fee estimate and must contain the following elements: a description of the records; an indication of what exemptions or other provisions the institution might rely on to refuse access; an estimate of the extent to which access is likely to be granted; name and position of the institution decision-maker; a statement that the decision may be appealed; and a statement that the requester may ask the institution to waive all or part of the fee. [Orders 81, MO-1479, MO-1614] Representations The Ministry outlines the steps it took in responding to the appellant’s request: ... [T]he Ministry initially provided an interim decision to the appellant which contained a detailed listing of the records which were responsive to the request. The [Ministry’s Freedom of Information Coordinator] discussed this list with the appellant and was able to narrow the scope of the request. The appellant provided the Ministry with a specific, detailed list of the records requested as well as a specific timeframe in which the search was to be conducted. As a result, two program areas in the Ministry were identified as having responsive records, i.e. Smart Systems for Health and the Project Management Office’s E-Physician Project. The search was conducted by experienced individuals in both branches who are knowledgeable about the program areas’ record holdings. Both program areas provided [the Coordinator] with a sample package of responsive records which included Requests for Proposals, contracts, invoices, timesheets and memorandums related to the hiring of consultants. Based on the sample package, [the Coordinator] issued an interim decision to the appellant that contained: a description of the records, the time period required to conduct the search, the names and titles of the decision makers and the exemptions under the Act which would be applied to the responsive records. The interim decision letter also indicated that the decision may be appealed and that a request for a fee waiver could be made. In addition, the letter contained a fee statement outlining the search time, record preparation time and photocopying costs involved with this request. The appellant disputes the Ministry’s statements, pointing out that he was not provided with a detailed listing of responsive records and did not receive a description of the records from the Ministry. The appellant submits: It is my assertion that the fee estimate did not provide me with sufficient information to make an informed decision on whether or not to pay the fee and pursue access. So, while this is not core to my appeal, I don’t believe I was given an adequate interim decision . [appellant’s emphasis] The Ministry responded: ... During attempts to narrow and clarify the request, the requester/appellant was informed how the responsive records were kept in [the Ministry]. First of all, the program areas state that there is
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