Section 75 of the Act allows public bodies to charge fees for certain services which they provide in the processing of formal Freedom of Information (FOI) requests and provides guidance in assessing or waiving such fees.
Section 75 of the Freedom of Information and Protection of Privacy Act
Section 75 authorizes public bodies to charge fees for certain services when processing requests made under the Act, and provides guidance in assessing or waiving such fees. Fees may be charged only for the services specified in section 75(1)(a) through (d). Fees cannot be charged for:
The public body is required to provide the applicant with an estimate of the fee assessment before providing the services. The head of a public body may waive the fees or a portion thereof if, in his or her opinion:
The actual cost of services may be charged to commercial applicants, as prescribed in the Regulation.
Before providing any services to an applicant, that is, before incurring any chargeable costs in processing a request, the public body does a preliminary search for the requested records and estimates the total amount of time in excess of three hours it will take to locate and retrieve the records. The public body also estimates the number of pages that will be copied and released. A more detailed description of the criteria for fee estimates is found in the Guidelines for Determination of Fee Estimates document.
The public body then prepares an estimate of the total fees that apply to processing the request.
The public body gives the applicant an estimate of the fee that will be charged for services. The fee estimate provides a breakdown of the individual costs being charged for each service. The public body also informs the applicant why the fee is necessary. The applicant may revise the request to lower the estimated cost or request a waiver of the fee.
The reasons for a decision to waive or to charge a fee are recorded, provided to the applicant and attached to the request file.
At this point, the public body does not require the applicant to pay the entire fee but may request a deposit if the fee estimate is greater than $200. The deposit must not exceed half the estimated fee.
After the public body finishes processing the request, it asks the applicant to pay either the total fee or the balance of the fee, whichever is applicable. It does not provide access to the records until the applicant has paid the fee. The 30-day time limit is suspended pending payment of the fee.
In cases where public bodies receive requests from members of the legislature or opposition caucuses that result in a fee estimate, the member or Caucus may request payment by the legislature.
It is government policy for public bodies to require payment of fees before releasing the records requested. The Legislative Comptroller, who manages payment for requests from the legislature, has agreed to the following process:
The public body sends the requester a fee estimate letter which includes two signature blocks – one for the requester and one for the Legislative Comptroller.
If the requester intends to pay the fee, he/she signs the original fee estimate letter and forwards it to the Legislative Comptroller for signature.
The Legislative Comptroller indicates commitment to pay by signing the original fee estimate letter and returning it to the public body.
Once the public body has received the letter signed by the Legislative Comptroller, it can begin to process the request.
When the records are ready for release, the public body sends an invoice to the Legislative Comptroller, along with a copy of the signed fee estimate letter.
The records will be released to the requester when the public body receives the cheque from the Legislative Comptroller.
After collecting any fees in relation to processing requests under the Act, the public body deposits them in the appropriate revenue account: for ministries, fees are deposited in the consolidated revenue fund; for provincial agencies not covered by the Financial Administration Act, the fee is dealt with in accordance with approved financial policies. Local public bodies establish their own policies and procedures regarding the disposition of fees.
Any person who is required to pay a fee for access to information under the Act may ask the Commissioner to review the head’s decision to require a fee under section 42 and section 52. After reviewing the circumstances surrounding the charging of a fee, the Commissioner may confirm, excuse or reduce the fee or order a refund under section 58(3)(c).
Section 4(3) (Information rights) of the Act indicates that the right of access to a record is subject to the payment of any fees required under section 75.
Subsection 71(1) allows public bodies to make records available to the public on demand without a formal FOI request.
Subsection 71(2) allows public bodies to set their own fees for providing information through routine channels. The fee schedule in section 7 of the Regulation does not apply to routine release of information.
The Commissioner may also reduce or refund a fee if the public body fails to respond to the applicant’s request within the time limit specified in the Act.
Schedule 1 of the Regulation under the Act sets out the fees that public bodies can charge for specific services.
The Schedule of Maximum Fees gives the applicable hourly rates for manual searching, flagging and extracting files, whether paper or electronic, and for computer time and programming in order to process machine readable records.
Manual search time covers the personnel time involved in locating and extracting the record. It includes time spent examining indexes, file lists and listings of records, whether on computer or paper, time spent flipping or otherwise searching through files to locate the records which will fall within the scope of the request and time spent flagging and extracting the records from the files.
In some instances, a response to a request may require computer programming and processing time, for which the public body may charge. The Regulation specifies the fees that public bodies may charge for computer time. There may also be other costs associated with processing a record from machine readable records. The public body may charge fees for those services that are set out in the Regulation.
Public bodies cannot charge for the time it takes staff to review records (to determine if an exception applies), to sever information from a record or to supervise an applicant while he or she views original records.
This phrase includes the time spent photocopying, assembling, collating and stapling. Cost-per-page copying fees apply only to documents given to (not just viewed by) the applicant. This does not include the time spent severing.
Shipping charges include charges for delivery of the records as agreed to by the applicant.
Handling includes time spent physically putting the response package together. It does not include time spent preparing letters or reviewing records.
A "per page" fee means the amount that can be charged for each side copied. For example, if the copy is double sided, the charge is for two pages. The copying fee depends on the medium of the original records and the method of reproduction used.
A public body charges a commercial applicant for the time staff spends copying records in addition to the cost per page. The public body charges non-commercial applicants only for the number of copies disclosed and not for the staff time spent copying.
Public bodies do not charge for copying records where copying is necessary for the processing of the request (e.g., where copies are needed for consultation with third parties or in documenting the application of exceptions). A copying fee is assessed only for copies that are disclosed to the applicant.
The 30-day time limit is suspended from the date on which the fee estimate (with the request for deposit, if applicable) leaves the public body. The time limit starts again on the day that the public body receives the deposit or the applicant’s reply agreeing to pay the fee, whichever is applicable.
There will be some instances when public bodies waive fees, for example, where the applicant is unable to pay the required fee. In other instances, the release of the information will benefit the public at large and the public body cannot justify requiring a fee payment from a single applicant. The decision to waive or reduce a fee is made for each request individually, based on what is fair and equitable in the circumstances of the case. The party seeking a fee waiver bears the burden of providing reasons why the fee should be waived. A simple statement by the applicant that he or she cannot afford the fee is not sufficient.
In determining whether or not a fee should be waived, the head of the public body considers all of the circumstances of the case including but not limited to the following factors:
The fees that these categories of applicants may be charged cannot exceed the actual cost of the service.
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Last updated: July 27, 2007