The guidance presented in this article is intended for institutions in Ontario responsible for responding to Freedom of Information (FOI) requests under either the Freedom of Information and Protection of Privacy Act (FIPPA) or the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).
Fee Estimate and Interim Decision – $25 to $99 Fee?
Readers of the Ministry of Government Services’ Freedom of Information Manual (the “FOI Manual”) might understandably be a little confused after reading through the template letters that appear in Appendix 4. Among the many excellent letters in the Appendix are two template letters entitled “4.8 – Letter to Requester – Fee Estimate and Interim Decision – $25 to $99 Fee” (the “4.8 Letter”) and “4.9 – Letter to Requester – Fee Estimate and Interim Decision – Over $100 Fee” (the “4.9 Letter”).
Many FOI professionals will be familiar with the 4.9 Letter—it sets out a detailed interim estimate of the fees that the institution expects to charge once for processing the request. Importantly, the 4.9 Letter asks for a fee deposit of 50% of the amount of the estimate, and states that “Receipt of the fee deposit is requested prior to completing your request.” As most FOI professionals will know, issuing this type of interim fee estimate letter and requesting a 50% fee deposit “stops the clock”. This means that any time elapsed between issuing this letter and the receipt of the fee deposit from the requestor does not count against the institution when calculating compliance with the basic 30-day deadline to respond to the FOI request. And the requestor is compelled to take action in response to the letter or abandon the request. Interim fee estimates for over $100, with their clock-stopping 50% fee deposit request, are an essential part of every institution’s FOI toolkit.
But what is the point of the 4.8 Letter, the interim fee estimate for fees between $25 and $99? In this letter, no fee deposit is requested. No response is sought from the requestor. There is no effect on the deadline. In fact, if the letter were lost in the mail, the requestor and the institution would likely never know, as nothing of consequence would come of it. Why does the FOI Manual include this letter template at all?
“Estimates” in the Acts
If you have ever read through FIPPA or MFIPPA (the “Acts”), then you might know the answer. The relevant language is in section 57(3) of FIPPA, and again in section 45(3) of MFIPPA. According to this section:
The head of an institution shall, before giving access to a record, give the person requesting access a reasonable estimate of any amount that will be required to be paid under this Act that is over $25.
Here, FIPPA and MFIPPA state that institutions must provide a “reasonable estimate” to the requestor any time the estimated fees are over $25. However, per section 7(1) of FIPPA Reg. 460 and the same section of MFIPPA Reg. 823, the institution is not permitted to charge a 50% fee deposit unless “the estimate is $100 or more”.
The authors of the FOI Manual presumably noticed that FIPPA and MFIPPA require a fee estimate for any amount over $25, even when the amount is under $100 and no 50% deposit is being requested. And they dutifully created a separate template letter for just this purpose. I can’t say that I blame them, because a plain reading of the Acts would seem to indicate that institutions should send out an separate interim fee estimate in this situation, regardless of how pointless an interim fee estimate that does not request a deposit is in practice.
IPCO Guidance: Fees, Fee Estimates and Fee Waivers
Thankfully, the Office of the Information and Privacy Commissioner of Ontario (IPCO) came to the rescue with a guidance document of their own which addresses the confusion. In Fees, Fee Estimates and Fee Waivers (June 2018) the IPCO clarified:
When the fee is over $25 and under $100, the fee estimate is based on the
actual work done by the institution to respond to the request [Order M-555].
and
The institution must complete all work necessary to respond to the request and issue a final access decision. The institution must also include a fee estimate, based on the actual work done, in its final access decision [Order M-555]. The institution cannot require the requester to pay a deposit.
In other words, there is no need for the institution to prepare a fee estimate between $25 and $100 until it has completed the work involved in processing the FOI request. Further, the fee estimate should be included in the final access decision, and does not need to be issued as a separate “interim” fee estimate.
This is extremely helpful guidance for institutions who might otherwise spend time unnecessarily preparing an interim fee estimate between $25 and $100 while the request is still in progress.
That said, why is it still called a “fee estimate”, if it is based on the actual work involved in processing the FOI request? Is the institution allowed to “estimate” how much work was involved, rather than account for the actual time spent?
Apparently not. The guidance states that “All fee estimates must include a detailed statement of how the fee estimate was calculated.” This would not appear to leave much room for estimation or guesswork. Precise accounting of the search time and other costs is required.
And what about requests with fees under $25? According to the Acts, these do not require a fee estimate. However, the guidance states that even in this case, the decision letter must include a “detailed breakdown” of the fee.
In practical terms, there does not appear to be any difference in how the fees are to be calculated whether the fee amount is under $25, between $25 and $100, or over $100. The only relevant distinction is that when the fees are expected to be over $100, the institution “may choose not to do all the work necessary to respond to the request”, and may instead send an interim fee estimate and interim access decision to the requestor and “require the requester to pay a deposit equal to 50 per cent of the estimate before taking any further steps to respond to the request”.
In any case, the institution is never obligated to send an interim fee estimate. Even when the fees are over $100, the institution may choose to do all the work without requesting a fee deposit, in which case the final decision letter “must advise the requester of the applicable fee estimate and include a detailed breakdown of the fee estimate based on the actual work done.” In other words, it is always acceptable for the “fee estimate” to be included in the decision letter (based on the actual work done), unless the institution is seeking a 50% deposit.
The guidance includes a helpful, updated Sample Fee Estimate and Interim Access Decision Letter. Notably, the document contains only one such template, which includes a 50% fee deposit request on the assumption the fees will be over $100.
I can only conclude that when IPCO uses the term “fee estimate” to describe the final fee information included in the decision letter, it is mere lip service towards the “reasonable estimate” requirement found in the Acts. The guidance makes it clear that there is no obligation to issue an interim fee estimate letter unless the fees are over $100 and the institution is seeking a 50% deposit from the requestor.
Conclusion
If your institution has been issuing interim fee estimates for amounts between $25 and $100, stop now. IPCO has made it clear that there is no need to send an interim fee estimate for any amount under $100; instead, the “fee estimate” (more accurately, the final fee calculation) should simply be included in the decision letter.
For fee amounts over $100, institutions have the option to send a separate interim fee estimate and require the payment of a 50% fee deposit which stops the clock until the deposit is paid. If the institution does not wish to charge a 50% fee deposit, it does not have to send an interim fee estimate. The final decision letter must include a fee calculation based on the actual work performed in any case.
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Resources
Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31
Freedom of Information and Protection of Privacy Act, R.R.O. 1990, REGULATION 460 (GENERAL) https://www.ontario.ca/laws/statute/90f31
Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56
IPCO: Fees, Fee Estimates and Fee Waivers https://www.ipc.on.ca/wp-content/uploads/2018/06/fees-fee_estimates-fee_waivers-e.pdf
Ministry Of Government Services: Freedom of Information and Protection of Privacy Manual (the “FOI Manual”) https://www.ontario.ca/document/freedom-information-and-protection-privacy-manual
FOI Assist Knowledge Base 