Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) and its Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) both give institutions the right to charge fees for the work involved in responding to an Freedom of Information (FOI) request.
Besides the $5.00 application fee (which is applicable to every disclosure request), institutions can charge fees for various other items, including:
- manually searching for a record
- preparing the record for disclosure
- computer and other costs incurred in locating, retrieving, processing and copying a record
- shipping costs
- photocopies and computer printouts
- records provided on CD-ROMs
- other costs incurred in responding to a request, as may be set by regulation
For many of the items above, it’s obvious that the relevant fee cannot be charged when no records are found. For example, when no records are found, the cost of preparing the records for disclosure is zero, and likewise, there would be no shipping cost for sending records to the requestor, and no costs for making photocopies of the records or a CD-ROM.
But what about the costs of manually searching for a record? In some cases, the institution will know right away, without having to search, that it has no records that are responsive to the request. But in other cases, conducting a search might be the only way for the institution to determine that it holds no responsive records.
Can the institution charge for the time it spends searching, even when no records are located?
Can Institutions Charge for Search Time When No Responsive Records are Located?
Let’s start by looking at the wording of FIPPA and MFIPPA (the “Acts”) where the right of institutions to charge for “search time” is set out. Both FIPPA s. 57(1)(a) and MFIPPA s. 45(1)(a) state:
A head shall require the person who makes a request for access to a record to pay fees in the amounts prescribed by the regulations for,
(a) the costs of every hour of manual search required to locate a record;
And the regulations specify the amount of this fee:
For manually searching a record, $7.50 for each 15 minutes spent by any person.
It is clear that an institution may charge for its search time when responsive records are found, and may insist on being paid such fees (along with any other fees owing, and subject to any fee waiver) prior to disclosing the requested records. But what about when no responsive records are found?
FOI Manual Template Letters
The template decision letters in Appendix 4 of the Ministry of Government Services’ Freedom of Information and Protection of Privacy Manual (the “FOI Manual”) seem to indicate that no fees of any kind should be found when the instituition has been unable to locate any responsive records.
The following four decision letter templates are included in the FOI Manual:
- 4.15 Letter to Requester – Decision to Disclose All Records
- 4.16 Letter to Requester – Decision to Deny Access in Full or in Part
- 4.17 Letter to Requester – Decision to Refuse to Confirm or Deny Existence of Record
- 4.18 Letter to Requester – Decision of No Responsive Records Exist
The first two decision letter templates (4.15 and 4.16) include language for letting the requestor know the fees involved in processing the request, and state that the records will be made available to the requestor “upon receipt of the outstanding balance”. However, the other two letter templates (4.17 and 4.18) do not include any language regarding the payment of fees by the requestor. Specifically, when there are no records to be disclosed to the requestor, the FOI Manual templates do not purport to charge the requestor fees for the search time involved in coming to that conclusion.
Given the existence of the fee language in the letter templates where records are potentially being disclosed, it seems safe to assume that the ommission of the fee language from the “no responsive records” letter template was intentional, and that the Ministry of Government Services does not expect that institutions will attempt to charge requestors search fees when no responsive records were located.
Of course, the FOI Manual’s template letter is not necessarily the final authority here. Rather, the FOI Manual is merely the Ministry of Government Services’ interpretation of the Acts and of any relevant decisions and guidance from the Information and Privacy Commissioner of Ontario (IPCO).
That said, my expectation that most institutions would not attempt to collect search fees (or any other fees) when no responsive records were located. I can think of a few reasons for this.
First, and most basic, is that many institutions rely on the template letters in the FOI Manual, and therefore would not think to charge fees in this situation.
Second, as previously noted, FIPPA and MFIPPA both state that fees may be charged for “the costs of every hour of manual search required to locate a record”. There may be an argument that since these are fees charged “to locate a record”, then if no record is located, no fee should be charged, even if the institution spends time looking.
Third, in practice, the institution’s decision letter will include both a description of the records found, as well as the amount that the requestor must pay before the institution will disclose the records. If there are no records to disclose, there may be little incentive for the requestor to pay the institution for the search fees. So, as a practical matter, we might expect institutions to often fail to collect any fees they attempt to charge here.
(On a related point, there is a pretty convincing argument that FIPPA and MFIPPA actually do not give institutions any authority to demand fees from the requestor. Rather, in various parts of the process, the institution is permitted to request the payment of fees, and the requestor is left to decide whether to pay such fees, or abandon their request. For example, if a requestor submits a new Freedom of Information request and does not include the $5.00 application fee, the institution may ask for payment of the $5.00 fee, and may refuse to process the request unless this fee is submitted, but may not otherwise treat the $5.00 as money owed to the institution. Similarly, an institution may expend actual search time attempting to locate records in order to prepare an Interim Fee Estimate, but the requestor remains free to pay or to refuse to pay the corresponding fee deposit, and if the requestor decides not to pay, the process ends there, with no expectation that the requestor will repay the institution for any search time expended.)
As a last practical point, whenever an institution tells the requestor that no responsive records could be located, the requestor has the right to challenge how the instituition conducted the search in an appeal to IPCO. If the decision letter also included a demand for search fees, this could increase the probability of an appeal, since the requestor will now potentially have two issues to dispute: first, the fact that no records were found, and second, the fact that the institution is also demanding fees. The institution may wish to weigh the large benefit of avoiding an appeal against the relatively small benefit of perhaps collecting search fees (that the requestor will have little incentive to pay in any case).
Admittedly, the language in FIPPA s. 57(1)(a) and MFIPPA s. 45(1)(a) is not entirely clear on whether search fees can be claimed when no responsive records are found. I am unaware of any IPCO decision that would resolve this, and I can’t say with certainty how IPCO would rule if the issue ever came up in an appeal. That said, given the ambiguity, and for the reasons outlined above, I believe the best practice is to not charge fees when no responsive records are found. And further, given how the relevant decision letter template in the FOI Manual is written, I would expect that most provincial and municipal institutions in Ontario do not charge fees in this situation. (Of course, circumstances may vary—for example, if a requestor is exhibiting a pattern of conduct that is causing the institution to repeatedly expend search time in a wasteful or unproductive manner, it may be helpful to find a way to put the expenses “on the record”, and setting out fees in the decision letter may well be a reasonable way to accomplish this.)
Has your institution ever sent a demand for fees to a requestor when no responsive records were located? Does this article make you want to re-think your practice? Feel free to comment below—I would love to hear from you!