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Document
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M-726
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Institution/HIC
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City of Oshawa
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Summary
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NATURE OF THE APPEAL: The City of Oshawa (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to information which the requester listed in 10 numbered paragraphs. These paragraphs itemized various subjects, including the requester's personnel records, personnel records of other individuals, records relating to specific developments taking place in the City, legal fees incurred on specific projects, retirement benefits paid by the City to named employees, records relating to lawsuits between the City and former employees, and confidential reports relating to the Office of the City Solicitor. The requester is a former employee who is currently involved in litigation with the City. The City responded by providing the requester with a fee estimate of $4,895.20, and asked for a deposit of 50%, as provided by R.R.O 1990, Reg. 823, which was in force at that time. [By separate letter, the City advised the requester that it was extending the time for responding to his request by an additional 90 days, due to the large volume of records, the need to retrieve records from off-site storage facilities, and the need to consult with others prior to reaching a decision on access. The requester did not appeal the time extension, and the City ultimately provided an access decision within the extended time frame. This access decision also was not appealed by the requester and will not be addressed in this order.] The requester filed an appeal with this office, claiming that the request contained 10 separate items which should have been treated separately for the purpose of calculating fees, and also that the fee estimates were excessive. After receiving the initial response from the City, the requester submitted nine separate request letters to the City, each one containing the same wording as one of the paragraphs from the original request letter (one paragraph in the original letter was not repeated). The City advised the requester that, because the City was already in the process of responding to his original request, it considered the new letters to be duplications of the original, and the City would not be responding separately to them. As far as the fee estimate was concerned, the City sent a subsequent letter to the requester reducing the fee estimate to $2,001, having removed any costs relating to the requester's personal information and photocopy estimates for records which the City did not intend to disclose. The City again requested payment of a deposit to cover 50% of these revised estimates. By the time the response letter containing the access decision was issued, the City had completed all required searches, and further reduced the fee to $922.50. This figure was calculated on the basis of 32.75 actual hours of search time, taking into account the two free hours provided by regulation. The City advised the requester that any required photocopy charges would be added to the total fee, and that none of the search fees related to his personal information. The City also notified the requester that he could obtain his personnel records once the fee had been paid. Mediation was not successful and a Notice of Inquiry was sent to the requester (now the appellant) and the City. Representations were received from both parties. The issues I will address in this order are: 1. Whether the fees charged by the City were calculated in accordance with the Act and regulations. 2. Whether the City is entitled to delay access to the appellant's personnel records until the fees have been paid. This request and appeal were both filed prior to the enactment of Bill 26, which changed the fee structure of the Act . My decisions in this appeal will be made under the statutory and regulatory provisions in force at the time the request and appeal were filed. DISCUSSION: FEES The dispute in this appeal relates to the calculation of chargeable search time. The City's position is that the appellant is only entitled to two hours of free search time because he submitted only one request. The City acknowledges that the request included 10 items, but submits that the 10 items are linked by virtue of the appellant's litigation with the City. The appellant's position is that the City should be required to deal with each of the numbered items in his original request separately, resulting in an allocation of two free hours of search time per item listed in the request. He submits that had the City particularized the amount of search time associated with each item, he would have been in a position to decide how he wanted to proceed with each item before any costs were incurred by the City in retrieving the records. At the time of the appellant's request, the relevant statutory and regulatory provisions of the Act read as follows: Section 45(1)(a) If 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 search charge for every hour of manual search required in excess of two hours to locate a record; R.R.O 1990, Reg. 823, section 6 The following are the fees that shall be charged for the purposes of subsection 45(1) of the Act : 3. For manually searching for a record after two hours have been spent searching, $7.50 for each fifteen minutes spent by any person. In my view, the appropriate calculation of chargeable search time is based on the activity of manually searching for records, not on the wording of a particular request. It is not appropriate to require an institution to calculate free search time by counting items listed separately in a request, nor to penalize a requester for listing multiple requests in one letter. Some of the items in the original request appear to deal with separate and discrete subject matters. The City argues that each item is linked by the ongoing litigation between the City and the appellant. It is clear that the records relating to this litigation have not been consolidated by the City, and that the searches required to locate all responsive records involved a number of different departments and employees. Based on the evidence before me in this appeal, in my view, the fact that the appellant is involved in litigation has had little effect on the actual activity required by the City to locate responsive records, and is not the appropriate factor to
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Legislation
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Subject Index
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Published
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Mar 07, 1996
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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