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Document
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P-264
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File #
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900173
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Institution/HIC
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Ministry of Treasury and Economics
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Summary
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O R D E R BACKGROUND : On December 12, 1989, the requester wrote to the Ministry of Treasury and Economics (the "institution") requesting the following records: Appl. One - Briefing notes/memos to the Minister/Premier since Skydome opened in June, 1989 on its operational problems/finances/Board meetings. Appl. Two - Correspondence, telephone notes, memos to self, since June/89 with Dome Consortium Investments Ltd. and Stadco/StadcoBoard (Skydome) on future partnership/ ownership arrangements. The requester asked for a fee waiver. On March 30, 1990, the institution informed the requester that the records responsive to the requests were unduly expensive to produce for inspection by the head to make a decision regarding access to the records. Therefore, a representative sampling of the relevant records was undertaken and the requester was provided with an interim notice by the head under section 26 of the Freedom of Information and Protection of Privacy Act (the " Act "). The institution advised the requester that, based on the representative sample and their experience with the records, approximately two-thirds of the records would be briefing notes and the remainder would be memoranda and other correspondence. The institution further advised that portions of the records would be exempted from disclosure pursuant to sections 12(1), 13(1), 17(1)(a), (b), (c) and 18(1)(c) and (d) of the Act , but access would likely be granted to approximately 75 to 90% of the information contained in the records. No final decision had been made regarding access because this was an interim notice. In addition, the head issued the following fees estimates for the two requests: Search (28 hours x $24.00/hour) = $672.00 Request #1 Preparation (10 hours x $24.00/hour) = $240.00 Request #2 Preparation (2 hours x $24.00/hour) = $48.00 Reproduction ($0.20 per page) Estimated Total Fees = $960.00 The fees 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. On April 14, 1990, the requester appealed the institution's decision to charge what the requester deemed were "unreasonable" fees estimates. Mediation to resolve the appeal was attempted but was not successful. Accordingly, notice that an inquiry was being conducted to review the portion of the institution's interim notice regarding the fees estimates 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 appeal, accompanied the Notice of Inquiry. Written representations were received from the appellant. In response to the Appeals Officer's Report, the institution made representations on the issue of fee waiver only. The institution indicated to the Appeals Officer that, in support of its fees estimates, it wished to rely on the information contained in its original interim notice and on information shared with the Appeals Officer during mediation. PRELIMINARY MATTERS: At the time of the head's decision in this appeal, the relevant sections of the Act and Ontario Regulation 532/87 provided: Section 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; [emphasis added] Section 5(2), Ontario Regulation 532/87 Subject to section 57 of the Act, a head may require a person who seeks access to a record to pay the following additional amounts: 1. For manually searching for a record after two hours have been spent manually searching, $6 for each fifteen minutes spent by any person. 2. For preparing a record for disclosure, including severing a part of the record under subsection 10(2) of the Act, $6 for each fifteen minutes spent by any person. [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 amendment made the charging of fees to a requester mandatory, where no provision is made for a charge or fee under any other Act . On the same date, Ontario Regulation 516/90 came into force. Section 6 of this Regulation made the charging of fees mandatory and increased the amount of fees chargeable under section 57(1). In Order P-260, dated December 19, 1991, I discussed the effect of these legislative changes on the same issues currently before me, involving the same appellant and institution. I stated at page 6 of that Order that, in order to ensure the appellant is treated fairly, I would apply the provisions of the Act and regulations operating at the time his request was made. For the same reasons, in this appeal I am applying the provisions of the Act and regulations operating at the time of the appellant's request. ISSUES: The issues arising in this appeal are as follows: A. Whether the amount of the estimated fees was calculated in accordance with section 57(1) of the Act . B. Whether the head's decision not to waive fees was in accordance with section 57(3) of the Act . SUBMISSIONS/CONCLUSIONS : ISSUE A : Whether the amount of the estimated fees was calculated in accordance with section 57(1) of the Act . In appealing the amount of the fees estimates provided by the institution, the appellant maintained that the search and preparation charges were unreasonable. Search Charges The institution claimed that the records responsive to the requests would be unduly expensive to produce for the purposes of inspection by the head in making a final decision regarding access. As a result, a representative sample of the records was reviewed and an interim notice was issued. The fees
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Legislation
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FIPPA
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57(1)
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57(1)(a)
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57(1)(b)
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57(3)
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jan 28, 1992
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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