Introduction

s.24, 48, 50, 57, 60 FIPPA / s.17, 37, 39, 45, 47 MFIPPA s.5, 5.2, 5.3, 6, 6.1, 7, 8, 9, O.Reg.460 /s.5, 5.2, 5.3, 6, 6.1, 7, 8, 9, O.Reg.823

The Freedom of Information and Protection of Privacy Act (FIPPA) / Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) adopt a user pay principal.

Under s.57(1) FIPPA / s.45(1) MFIPPA, a person making an access request must pay some of the costs the institution incurs processing the request. The fee schedule is contained in the regulations. Differences in the fees apply depending on whether the request is for general records or the requester’s own personal information. The fees must be charged unless they are waived by the institution, or unless a provision is made for charging fees under another statute. The Municipal Act does not give local institutions the power to set new fees for records that would normally be available through MFIPPA. The following are examples where fees can be charged for records that are available to the public without having to make an access request under the FIPPA/MFIPPA.

For example: Under the Municipal Act, the council can pass a by-law to set fees for copies of records, books and documents requested from the clerk’s office. Those fees would take precedence over the fee provisions in MFIPPA.

Under the Public Libraries Act a library board can charge fees for, among other things, services other than for admission, use of library materials and reference and information services.

Under the Highway Traffic Act, the Ministry of Transportation sets the fee for driver abstracts.

Types of Costs

Taxes

The Goods and Services Tax and The Provincial Sales Tax are not applicable to fees charged under FIPPA/MFIPPA.

Mandatory Application Fee

A $5.00 mandatory application fee must accompany a request for either personal information or general records under FIPPA/MFIPPA.

Once the application fee is received, s.26 FIPPA / s.19 MFIPPA requires a head to provide a requester with access to records and/or a decision letter within 30 days. This requirement does not apply if the mandatory application fee has not been received by the institution. However, the onus is on the institution to collect this application fee before processing the request if it decides to proceed. Failure to collect the fee application will not prevent the Information and Privacy Commission (IPC) from hearing an appeal about a request that has been completed.

Fees for Personal Information Requests

A request for personal information is a request made by an individual (or another person acting on his/her behalf) for the individual’s own information.

For example: If a lawyer has a client’s written consent, his/her request for the client’s personal information is a personal information request. Likewise, custodial parents' requests for the personal information of their young children (i.e. children under the age of 16) are personal information requests.

No fees are charged for search or preparation time, but there are fees for photocopying ($0.20 per page) and computer costs as specified in the regulations.

Fees for General Records Requests

All costs incurred that are specified in the regulations may be charged. These costs which are described below, are calculated from the time a request is received.

Costs for Photocopying, Computer Printouts and Computer Disks

An institution can charge $0.20 per page for photocopies and computer printouts regardless of whether the request is for personal or general information. This per page charge includes the cost of staff time to feed documents into a photocopy machine. An institution can also charge a fee of $10.00 for floppy disks.

Search Time

A charge can be made for the amount of time required to search for the records. This includes personnel time involved in searching for the records, examining file indices, file plans or listings of records, either on paper or in a computer.

An institution can charge $7.50 for each 15 minutes spent by any person in the institution searching for the record. If more than one person is conducting the search, each person’s time can be charged.

Search time does not include:

  • time spent photocopying the records
  • the time it takes an employee to walk from one area in the institution to another to locate responsive records
  • the time to drive to an off-site storage to retrieve records (unless costs are invoiced by an outside firm).

Search time includes:

  • examining ledger-sized binders of computer sheets to determine whether particular sheets are responsive.

Record Preparation Charges

Personnel time involved in physically preparing the record for disclosure can be charged.

This includes the time involved in severing exempt information prior to disclosure. Severing a record includes physical handling, for instance, putting removable tape over exempt portions of the record before it is photocopied. An institution can charge $7.50 for each 15 minutes spent by an person for preparing a record for disclosure.

An institution cannot charge personnel time involved in reviewing the records to determine if an exemption applies.

Note: Preparation time does not include the time taken to actually photocopy a record. Twenty cents per page is the maximum amount that may be charged for photocopying and this includes the cost of an individual 'feeding the machine.' In addition, preparation in this section should be read narrowly and it should not include removing staples and paperclips, copying the relevant pages and putting them back to the books where they originated. However, where special preparation is necessary, such as where maps have to be taped together or where records have to be removed from cerlox bound volumes, fees for preparation may be appropriate. (See for example: Orders #M-301, P-490, P-608, M-360, M-372)

Computer Costs

An institution can charge $15.00 for each 15 minutes spent by any person developing a computer program or other method of producing a record from machine readable record.

In some instances producing a record from a machine readable record will require the manipulation of information stored in a computer database. It may be necessary to write a computer program so that the particular information requested can be retrieved.

Costs for Services Outside the Institution

An institution may require outside services to assist in locating, retrieving, processing or copying paper or electronic records.

The costs of these services can be passed on to the requester if two conditions are met:

  • the institution receives an invoice for the cost of outside services
  • the costs cover services that could not have been provided by the institution’s staff.

For example: A request might be for a copy of a record in a format other than a photocopy, computer printout or a computer disc. If an institution does not have the capability to do specialized copies, such as microfilm or fiche, the institution can send the material to outside facilities for copying and invoice the requester.

The costs, even if invoiced, cannot be charged if they would not have been incurred had the request been processed by the institution’s staff. (Order #P-1536)

Shipping Costs

Shipping charges incurred by the institution, such as postage or courier costs, can be charged.

Additional Fees

Regulations can be created to allow charging of additional fees.

Fee Estimates and Deposits

See Chapter 3 (Access Procedures) for the procedure for calculating fee estimates.

Under $25.00

s.57 FIPPA / s.45 MFIPPA

If it costs less that $25.00 to process a request, it is not necessary to give the requester a fee estimate. Rather, the requester can be informed of the amount to be paid in the decision letter.

$25.00 up to $100.00

s.57(3) FIPPA / s.45(3) MFIPPA

The institution shall, before giving access to a record, give the requester a reasonable estimate of any amount that will be required to be paid. If that amount is over $25.00 and under $100.00, the institution is not required to collect a 50% deposit.

$100.00 or more

s.7 O.Reg.460 / s.7 O.Reg.823

A fee estimate must be given if costs will equal $100.00 or more. An institution may require a deposit of 50% of the estimated fee. Once a fee deposit is requested, an institution is not required to take any further steps to respond to the request until the deposit is paid.

An institution is not required to release records to a requester until the fee has been paid, or the issue of fees has been resolved after an appeal to the IPC.

Other Important Considerations

A fee should be "fair and equitable".

The Commissioner has ruled that in order to determine whether a fee estimate is fair and equitable the following factors are relevant: 1. the manner in which the institution attempted to respond to the appellant’s request; 2. whether the institution worked with the appellant to narrow and/or clarify the request; 3. whether the institution provided any documentation to the appellant free of charge; 4. whether the appellant worked constructively with the institution to narrow the scope of the request; 5. whether the request involves a large number of records; 6. whether or not the appellant has advanced a compromise solution which would reduce costs, and 7. whether the waiver of the fee would shift an unreasonable burden of the cost from the appellant to the institution, such that there would be significant interference with the operations of the institution. (See for example: Orders #P-741, M-408, M-417)

Where an institution is providing a specific fee for "reproduction, " it must substantiate that fee. If it is for copies, then the institution must indicate the number of estimated pages, or the rate at which the fee is calculated. Sufficient facts and evidence must be provided to enable the requester to review the costs. (See for example: Orders #M-103, M-163)

Waiving Fees

It is the requester’s responsibility to ask the institution for a fee waiver. However, a request for a waiver need not be explicit, it may be implied. The party seeking a fee waiver also bears the responsibility of establishing his/her case.

For example: If the requester does not supply sufficient information to convince the institution that a fee waiver is justified, the institution is not required to grant the waiver. What an institution considers sufficient information will likely be influenced by the specific facts of the request.

A head shall waive all or part of the fees if in the head’s opinion it is fair and equitable to do so after considering:

  • the extent to which the actual cost of processing, collecting and copying the record varies from the amount of payment required by the section;
  • whether the payment will cause a financial hardship to the person requesting the record;
  • whether dissemination of the record will benefit public health or safety;
  • whether the person requesting access to the record is given access to it; and
  • if the amount of a payment would be $5.00 or less, whether the amount of the payment is too small to justify requiring payment.

A head’s decision not to waive a fee may be appealed to the IPC.

Note: the application fee cannot be waived.

Appeal Fees

There are mandatory fees for a requester appealing decisions to the IPC. A $10.00 fee applies to personal information request appeals and a $25.00 fee applies for general records request appeals. No fee is required for a third party to appeal an institution’s decision to disclose information.