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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 access to the following: Any letters, memos, correspondence or documents, including press lines and ministerial briefings and notes to file, about private-public partnerships to build new long-term care facilities in Ontario which discuss in general or specific terms the number of facilities to be built and/or issues of oversupply and undersupply of such facilities and/or options available to the Ministry of Health to deal with the issue from five years ago (October 21, 1997) until the present. The Ministry identified 18 records responsive to the request and granted access to Records 17 and 18. The Ministry denied access to the16 remaining records on the basis of sections 12(1)(b) and (e) (Cabinet records), 13(1) (advice or recommendations) and/or 22(a) (publicly available) of the Act . The Ministry also stated that a fee of $812.40 was payable for the 27 hours of search time and 12 pages of photocopying. The requester, now the appellant, appealed the decision, including the fee. During mediation, the Ministry provided the appellant with a copy of the index of records. As a result of his review of the index, the appellant was able to locate copies of Records 1, 2, and 3 for which the Ministry had claimed section 22(a). Records 1, 2, and 3 and the section 22(a) exemption are therefore no longer at issue in this appeal. Also during mediation, the Ministry agreed to review its access decision and granted partial access to some of the records that it had previously withheld in full. The Ministry issued a revised decision letter to the appellant together with a revised index of records reflecting this change. Mediation was otherwise not successful and the appeal was transferred to the adjudication stage. I began my inquiry by sending a Notice of Inquiry to the Ministry setting out the issues on appeal and seeking written submissions. In its representations, the Ministry raised for the first time the application of section 17 (third party information) to Records 6 and 7. Because section 17 is a mandatory exemption, I added it as an issue in this appeal. I then sent copies of the Notice of Inquiry to four parties whose interests might be affected by the disclosure of portions of Records 6 or 7 (the affected parties), inviting them to submit representations. One of the affected parties responded. That party, whose interests relate only to Record 7, does not object to the release of the portion of Record 7 that pertains to it. I then sent a copy of the Notice of Inquiry to the appellant. In that Notice I summarized the affected party’s position. I also enclosed a copy of the Ministry’s representations. The appellant chose not to make representations. RECORDS: Records 4 through 16 remain at issue in this appeal: Record 4 is a Long-Term Care Multi-Year Investment Plan (1998/99 to 2003/04) dated March 23, 1998 and is described in the Index as a Ministry submission to the Cabinet. The Ministry claims section 12(1)(b) for this record. Records 5, 6, and 7 are issue notes dated June 15, 2001, June 19, 2001 and April 17, 2002 respectively. These records are described as having been developed by Ministry staff for the purposes of providing recommendations and advice to the Minister for his decision. Partial access was granted to these records. The Ministry claims section 13(1) for the portions that have been withheld. Record 8 consists of briefing material dated September 6, 2002 developed by ministry staff for the purpose of providing recommendations and advice to the Minister. Access to this record was denied in full under section 13(1). Record 9 is a submission made to Management Board of Cabinet dated October 10, 2002, developed by Ministry staff for the purposes of providing recommendations and advice to the Cabinet Committee. Access to Record 9 was denied in full under section 12(1)(b). Records 10 and 11 are records dated September 24, 2002 and May 2, 2002, and were developed by Ministry staff for the purposes of providing recommendations and advice to the Minister. Both records have been denied in part. The Ministry claims sections 12(1)(e) and 13(1) for Record 10 and section 13(1) for Record 11. Records 12, 13, 14, 15, and 16, each consist of slide presentations developed by Ministry staff for the purpose of providing recommendations and advice to the Minister. The records are dated respectively, July 31, 2002, September 11, 2002, September 26, 2002, October 7, 2002 and October 24, 2003. Access to Records 12, 13, and 14 was denied in part. Access to Records 15 and 16 was denied in full. The Ministry claimed section 13(1) for the information that was denied for all five records. DISCUSSION: FEES Sections 48(1)(c) and 57(1) require an institution to charge fees for requests under the Act ; and section 57(4) provides for the waiver of fees in certain circumstances. More specific provisions regarding fees and fee waivers are found in sections 6 through 9 of Regulation 460. Section 57(5) provides that the Commissioner’s Office may review the amount of a fee or fee estimate, or the institution’s decision not to waive a fee. In its decision letter, the Ministry advised the appellant that it was charging a fee of $812.40. The amount payable was itemized as follows in a fee statement enclosed with the decision letter: Search time $30.00 per hour 27 hours $810.00 Photocopy charges $00.20 per page 12 pages $ 2.40 TOTAL $812.40 In my Notice of Inquiry, I asked the Ministry to provide detailed responses to a number of questions aimed at determining whether the fees charged to the appellant complied with the various statutory and regulatory provisions. The Ministry chose not to respond to the fees issue in its representations. Although not clear, it is possible that the absence of representations is intended to imply a waiver of fees on the Ministry’s part. As noted above, section 57(5) of the Act provides requesters with a right to ask the Commissioner to review the amount of a fee charged by an institution. Although there is no burden of proof specified in the Act with regard to fees, the burden of proof in law generally requires the person who asserts a position to establish it and, in my view, an institution seeking to impose a fee bears the onus of demonstrating that it is permitted by the statutory and regulatory requirements se
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