Last week, news organizations announced with dismay that British Columbia may impose an application fee of $25 for Freedom of Information requests filed in that province. Currently, in British Columbia, applicants can file an FOI request for free and pay no search charges unless the request is for public records (rather than personal information) and requires more than three hours of search time. Fees may also be charged for producing the required record, shipping and handling of the record, or providing a copy of the record.
The proposed fee changes recieved predictable criticism from journalists, academics, and even the B.C. Privacy Commissioner:
B.C.’s Privacy Commissioner says some changes planned for provincial freedom-of-information legislation will weaken the province’s democratic infrastructure, depriving journalists, opposition politicians and the general public of a window into how important government decisions get made.
Michael McEvoy said in an interview that plans to impose some of the highest fees in Canada to apply for records is an impediment to seeking information that the public already owns. The intention of the NDP government’s bill to make the premier’s office exempt from access requests would further erode transparency, Mr. McEvoy said.
“The public, the media and others have the right of access to information about how their governments are doing their business,” Mr. McEvoy said in an interview. “It is the people’s business that the government is doing and those records are, in essence, the people’s records, subject to certain exceptions of course.”
Mike Larsen, President of the BC Freedom of Information and Privacy Association, said he was “horrified” to see the introduction of a filing fee, saying it’s a clear attempt to create a disincentive for prospective FOI users.Xiao Xu, Globe and Mail (October 25, 2021): Changes to freedom-of-information legislation will weaken B.C.’s democratic infrastructure, says Privacy Commissioner
Which leads to the question, why do instititions in Ontario and elsewhere charge an application fee for FOI requests? Is it merely to create a “disincentive” for prospective FOI users, as claimed by Mike Larsen?
In today’s article, I explain that creating a disincentive for legitimate requests is in no way the intended purpose of application fees; rather, there are a number of laudable goals that having an application fee helps to achieve.
In Ontario, all institiutions who respond to FOI requests are required by law (FIPPA s. 24 / MFIPPA s. 17) to charge a $5 application fee. This fee applies to both requests for public records as well as requests for personal information. Unlike all of the other fees that an institition is permitted to charge for the processing of the FOI request, the $5 application fee cannot be waived. This suggests that the application fee is different from other fees; that it serves purposes other than simply helping the institition recover some of the costs of the process. (As I have noted previously, even in the absence of waivers, the fees collected by instititions in Ontario barely cover a portion of the actual costs involved in responding to FOI requests.)
Ascertaining the Identity of the Requestor
Charging an application fee with each request can help the institition confirm the identity of the requestor. Many instititions require the fee to be paid by cheque or other payment methods which require the requestor to provide their real name and often their address as well. Instititions may find this helpful for veryfying the identity of the requestor when responding to personal information requests, but it can be helpful for requests for public records as well. Generally, requestors of public records are not supposed to be treated differently based on their identity, but there is one notable exception: institutions are allowed to track the identity of the requestor to help them ascertain “a pattern of conduct that amounts to an abuse of the right of access or would interfere with the operations of the institution” amounting to a frivolous or vexatious request. If requestors could submit FOI requests with no application fee included, it would be much easier for them to “spoof” various identities when submitting large numbers of arguably frivolous or vexatious requests, impairing the institiution’s ability to draw a connection between them.
In practice, knowing the identity of the requestor can also be helpful for the instituition when attemping to interpret an incoming request.
Discouraging Frivolous and Vexatious Requests
Besides helping the institition ascertain the identity of the requestor, the application fee also discourages requestors from peppering the institition with large numbers of frivolous and/or vexatious requests. Without at least some minimal fee, it may be too easy for requestors to file “unserious” requests, clogging up the system as the requests are acknowledged, processed, and records are searched or fee estimates are prepared. A mere $5 fee is not likely to discourage any requestor who is actually interested in the results sufficiently to justify the work involved on the part of the institition.
Discouraging Request Splitting
Jurisdictions that offer “free” FOI requests always have to set some limit in practice, because even if the majority of requestors are reasonable, there will always be a few unreasonable requestors. (For example, in the absense of any costs at all, what is to stop a requestor from asking an institition for “all” of its records? Which of course would necessitate reviewing every record to determine whether any withholdings or redactions would apply.) To get around this, even instititions with “free” FOI reuqests generally do impose a fee if the labour required to respond to the request goes beyond a certain threshold. For example, British Columbia will charge requestors fees if more than three hours’ of search time is required to respond to a public records request.
Unfortunately, some requestors will attempt to get around paying any fees at all by “splitting” their request into multiple requests, each of which the requestor hopes will fall under the “3 hour” threshold (or whatever threshold is set by the relevant jursidiction). For example, a requestor looking for all emails sent or received by the executive team of a Crown corporation regarding a particular topic may submit multiple requests as follows:
- Request 1: All emails to or from the CEO of Crowncorp in 2021 relating to Topic X.
- Request 2: All emails to or from the CEO of Crowncorp in 2020 relating to Topic X.
- Request 3: All emails to or from the VP of Marketing of Crowncorp in 2021 relating to Topic X.
- Request 4: All emails to or from the VP of Marketing of Crowncorp in 2020 relating to Topic X.
- Request 5: All emails to or from the VP of Finance of Crowncorp in 2021 relating to Topic X.
- Request 6: All emails to or from the VP of Finance of Crowncorp in 2020 relating to Topic X.
… etc …
These requests aren’t individually frivolous or vexatious, however, arranging what would normally be a single FOI request as a series of 10 or more broken-up requests in an attempt to avoid search fees by keeping each request below the 3-hour threshold is inefficient for the institition and represents unfair evasion of the fees that are intended to apply to larger FOI requests. It is only fair that requestors who take up a far greater portion of the institition’s resources should pay more than requestors with simple or even routine FOI requests.
Charging an application fee for each request (along with charging for even the first 15 minutes of search time) eliminates the incentive for requestors to undertake this inefficient and evasive practive.
Discouraging Abandoned Requests
A great portion of the work involved in responding to an FOI request takes place before the institition is ever in a position to send the requestor any request for additional payment:
- Each request must be reviewed
- At most instititions, a file is created and the request is entered into a tracking system
- Receipt of the request by the institition is generally acknowledged by a letter or email sent back to the requestor
- Appropriate departments and/or search staff are identified within the institition
- In many cases, a search begins for a portion of the records (often between 10 and 30 percent of the total requested records)
- Such portion is reviewed for the applicability of exemptions in support of creating an initial fee estimate
- An interm fee estimate letter is prepared, which can itself take 2-4 hours if done manually.
After all of these steps are completed by the institution, in a troubling number of cases, the interim fee estimate is simply ignored or refused by the requestor and the request process ends there as an “abandoned” request. The institition receives no payment for the labour and resources employed to bring the request to that point, and the requestor never receives any records, so the entire process is a wasted effort.
Charging a minimal application fee can help reduce the likelihood of this situation happening — the requestor is likely to take their request just a little more seriously if there is a $5 fee to be paid when making the request. Further, the $5 fee is a sort of “proof” that the requestor is willing and able to pay fees later on when they come due. In this way it bears some resemblance to the small fee sometimes paid to reserve a new car prior to taking delivery, or to paying ante at a poker table.
Discouraging International Requests
This may be a somewhat contentious point, but the effect is real and so it bears explanation. Generally, Freedom of Information requests may arrive from anywhere in the world. Most Freedom of Information legislation dates back to a time before the internet was part of most people’s daily lives. Prior to the internet, it would be unusual for people in countries outside Canada to have any awareness of the many instititions that make up our government and its related agancies, municipalities, etc. unless such person had some prior connection to the country. However, it is now common for almost every instituition to advertise itself online, to post its address, to describe how to make an FOI request, and even in some cases, to even accept FOI requests online. Without application fees, the effect of this may be similar to publishing one’s email address or telephone number onto the internet for the world to see.
Most individuals are familiar with the inconvinience of spam emails, scam emails, and various scam telephone calls and recordings, most of which are assumed to originate from outside of Canada. Although these can be a frequent annoyance, luckily, individuals can simply ignore or delete them as they come in. However, an institution which is responsible for responding to FOI requests is not so lucky. It has an obligation to process any request that arrives — to carefully consider whether the request is frivolous or vexatious, and to give each request the same due consideration. And of course, for instititions, responding to international requestors imposes additional costs, many of which likely cannot be recovered under Ontario’s FOI legisaltion, e.g., additional postage for letter correspondence, as well as long distance charges.
Requiring even a small application fee of $5 likely discourages a significant portion of “less serious” international requests. Yes, there is more complexity for persons outside Canada to arrange for a cheque or money order made out in Canadian funds required to initiate an FOI request. But such complexity is entirely surmountable and likely does not discourage many “serious” international requestors, e.g., those with a genuine connection or significant interest in the country.
The “User Pays” Principle / “Co-Pays”
Finally, there is the idea that people who use a government service should pay for at least a portion of it. I described above the significant work involved in processing an FOI request even before any additional fees can be charged. No doubt journalists and non-governmental agencies do worthy work using the information they gather through the FOI process, and we should continue to encourage such public good by heavily subsidizing the actual costs of the FOI process as we currently do. But what portion of the actual costs of the program should requestors bear themselves? Should requestors’ share of the costs really be “zero”, as seems to be argued by the B.C. Privacy Commissioner and the President of the B.C. Freedom of Information and Privacy Association?
Having the “user” (the requestor) pay for at least some portion of the service is not only fairer to the taxpayers who pay for the remainder of the costs of the program; it also serves as a helpful “co-payment”, which is a concept used in areas as disparate as college tuition (which is heavily but not completely subsidized by the government), health and property insurance, toll roads and court fees, to discourage users of services from using them wastefully. We are wise to the utility of “co-pays” in numerous applications in both the public and private sector; all the same benefits apply when considering FOI application fees as a “co-pay” for initiating an FOI request.
How Much Should Institutions Charge?
It is worth asking, what is the appropriate application fee for an FOI request? Some have complained that B.C.’s proposed $25 fee would be “among the highest” in Canada. But keep in mind that Ontario’s $5 fee has gone unchanged since January 1, 1988, when its Freedom of Information and Protection of Privacy Act (FIPPA) was first enacted over 30 years ago. According to the Bank of Canada’s inflation calculator, $5 in 1988 is worth almost exactly $10 today ($9.95), so on that basis alone, a $10 application fee would seem reasonable.
Perhaps in our modern age of emails and other electronic documents, there is more work involved in an average FOI request than when FIPPA was first introduced, and so a relatively higher application fee is warranted. Or perhaps the B.C. Government is trying to get a bit of “lead time” with their proposed $25 dollar fee, with the understanding that any future changes to the FOI program would likely be subject to significant political backlash, therefore, whatever fee they set now will likely remain unchanged for at least another 30 years!