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Summary
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O R D E R On July 8, 1991, the undersigned was appointed Assistant Commissioner and received a delegation of the power and duty to conduct inquiries and make orders under the Freedom of Information and Protection of Privacy Act, 1987 (the " Act "). BACKGROUND : On June 18, 1989 the requester wrote to the Ministry of Treasury and Economics (the "institution") requesting the following records: Appl. One - Memos written by Susan Guinn in the 1985-89 period regarding Skydome (the Stadium Corporation of Ontario and on Dome Consortium Investments Inc.). Include her reports back on Stadium Board of Director meetings. Appl. Two - Briefing notes to your Minister or the Premier in the 1985 - 1989 period regarding the Skydome construction and costs. Appl. Three - Your Ministry's 1988, 1989 reviews/ assessments/reports, or those done by consultants, on Skydome costs, cost increases, long term revenues projections, public debt handling and scenarios, views on potential public share offering, and other components of the economics of Skydome. Appl. Four - Your Ministry's 1985 - 89 approvals/ agreement for each increase in credit for Skydome as arranged through the Canadian Imperial Bank of Commerce. Appl. Five - Records that indicate and document provincial funds committed beyond the $30 million, including the terms of the $5,766,250 advanced to the Stadium Corporation. Appl. Six - Any favourable tax benefits/incentives/ breaks provided to Dome Investments or the Stadium Corporation by the Province of Ontario - provide the records. The requester asked for a fee waiver and stated that he wished to view the records as they became available. The institution decided to process the six requests as a single request, because this was believed to be the most efficient method. The head advised the requester that he had considered the request for a fee waiver and "decided not to waive the payment of fees, as requested". In addition, the requester was advised that no records existed which responded to Appl. Six. The institution granted partial access to the records, claiming exemptions pursuant to sections 12(1), 12(1)(a), 13(1), 17(1)(a) and (c), 18(1)(a), (c), (d), (e), (f) and (g) of the Act . In addition, the head issued the following fee estimates: Fees Estimate for Request #1 Search (54 x 1.36 hrs x $24/per hr) = $1,762.56 Preparation [(54 - 17) = 37 x 0.23 hrs x $24/hr)] = $ 204.24 Reproduction $0.20 per page ... Fees Estimate for Request #2 Search (14 x 1.36 hrs x $24/per hr) = $ 456.96 Preparation [(14-3) = 11 x 0.23 hrs x $24/hr)] = $ 60.72 Reproduction $0.20 per page ... Fees Estimate for Request #3 Search (23 x 1.36 hrs x $24/per hr) = $ 750.72 Preparation [(23-3) = 20 x 0.23 hrs x $24/hr)] = $ 110.40 Reproduction $0.20 per page ... Fees Estimate for Request #4 Search (6 x 1.36 hrs x $24/per hr) = $ 195.84 Preparation [(6 - 6) = 0 x 0.23 hrs x $24/hr)] = $ - Reproduction $0.20 per page ... Fees Estimate for Request #5 Search (35 x 1.36 hrs x $24/per hr) = $1,142.40 Preparation [(35 - 12) = 23 x 0.23 hrs x $24/hr)] = $ 126.96 Reproduction $0.20 per page The fee estimates were based on the rate of $6.00 per quarter hour which was the rate permitted by Ontario Regulation 532/87 at the time the access requests were made. The total fee estimate amounted to $4,810.00 plus photocopying charges at the rate of $.20 per page. The requester appealed the institution's decision to deny partial access to the records (Appeal Numbers 900106, 900108, 900110, 900112 and 900114) and to charge what the requester deemed were "excessive search and preparation fees" (Appeal Numbers 900107, 900109, 900111, 900113 and 900115). He requested that the fees be "dropped". In addition, the appellant indicated that the institution's decision letter provided him with insufficient information about the records to allow him to understand the fees or narrow his requests. Mediation to resolve the five fees appeals was attempted but was not successful. Accordingly, notice that an inquiry was being conducted to review the institution's decision regarding the fees was sent to the appellant and the institution. An Appeals Officers' Report, which is intended to assist the parties in making any representations to the Commissioner concerning the subject matter of the appeals, accompanied the Notice of Inquiry. Written representations were received from the institution only. In order to gain a better understanding of the procedures undertaken by the institution to locate the records responsive to the appellant's requests, the Appeals Officer attended at the institution to review the files and the search procedures. PRELIMINARY MATTER: At the time of the head's decision in these appeals, the relevant portions of section 57(1) of the Act provided: 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; [emphasis added] Section 57 of the Act was amended on January 1, 1991 by the Municipal Freedom of Information Statute Law Amendment Act, 1989 . The amended section 57(1) provides: 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; [emphasis added] The amendment made the charging of a fee mandatory, where no provision is made for a charge or fee under any other Act . Under the former section 57(1), the charging of a fee in those circumstances was within the discretion of the institution. At the time of the head's decision, On
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