Alternative Fee Systems for Publicly Available Information

One of the most frequent complaints about Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) and its municipal equivalent the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) is that these statutes have failed to keep up with the times.

As noted in the Globe and Mail recently, Canada was one of the first nations in the world to enact Freedom of Information (FOI) legislation. The Federal Access to Information Act came into force in 1983. Ontario’s provincial and municipal Freedom of Information legislation arrived soon thereafter, with FIPPA coming into effect on January 1, 1988 and MFIPPA on January 1, 1991.

Although it was commendable to take a pioneering role in introducing freedom of information legislation, the result now is that our FOI legislation is among the oldest in the world. It has become almost a cliché to mention that when FIPPA and MFIPPA were introduced, the world was a much different place. Email had not yet arrived at government offices. Paper records were the norm, and electronic records were the exception. The use of personal computers in offices was only starting to gain traction, with shared terminal access being more common. Freedom of Information software was years away. Smartphones did not exist and regular “voice only” cellular phones were considered a luxury item. And the added cost of voicemail systems was generally considered not justifiable for government employees.

Today, of course, government institutions deal with a wide variety of electronic records that the original Acts never contemplated. A single employee might send and receive dozens of emails each day. Police services maintain hundreds or thousands of hours of body camera footage. Phone systems now include voicemail by default, with each voicemail message stored as an electronic record. And the ease of using and creating modern electronic records instead of paper files, microfiche and tape storage has led to an explosion in the volume of records at just about every institution.

Of course, the fact that each individual record is easier to create and retrieve does not mean it is any easier on average to search for responsive records or to review such records for FOI disclosure purposes. Freedom of Information requests now cover more document types than ever before, each with its own unique search characteristics. (Just think of the differences between searching for emails sent “to or from” an individual versus searching for all documents “mentioning” an individual versus searching for all camera footage “containing” an individual.) What’s more, each record is now far more likely to be buried in an ocean of similar records; a relevant email might exist among millions of emails sent within a particular date range, and relevant camera footage might be buried somewhere within thousands of hours of irrelevant footage. Finally, although artificial intelligence systems are just starting to hold promise, human review is currently still required in order to apply privacy rules and other exemptions, to ensure that records are appropriate for disclosure.

As years pass, the deadlines and fee structures set out in FIPPA and MFIPPA seem less and less appropriate for the kinds of records that institutions are dealing with today. The fact that institutions are not permitted to charge fees for making determinations about whether it is appropriate to disclose certain records or portions thereof seems like a terrible fit for many types of FOI requests that institutions are likely to receive today.

For example, a keyword search conducted by an institution’s Information Technology department may take only a few minutes to prepare yet result in tens of thousands of responsive emails. Those tens of thousands of emails can easily take hundreds of hours or more to review for severance and withholding purposes (that is, determining whether any of FIPPA or MFIPPA’s many exemptions and exclusions should apply) yet none of this review is chargeable to the requestor; for public records requests, only the act of actually “preparing” the record (that is, the physical act of redacting the portions of the record that are being withheld) can be charged. When that process is done, those same 10,000+ emails may fit on a single USB stick for which the requestor can be charged only $10. In this manner, a request that takes an institution hundreds of hours to process may result in as little as $100 in fees chargeable to the requestor. And for personal information requests, the situation is even worse: institutions aren’t even allowed to charge for searching and preparing the requested records. (If you are looking for something that can help you remember the fees applicable to each type of FOI request, I would be happy to send you a FIPPA/MFIPPA Reference Card – please don’t hesitate to request one today.)

A similar problem arises for body camera footage: FOI professionals must review such footage, often multiple times, to decide what portions of the video should be withheld (i.e., redacted, blurred, or cut out entirely). Theoretically, this review should be conducted on a frame-by-frame basis over minutes, hours or potentially days of footage, yet institutions aren’t permitted to charge for this review under the standard fee system in effect under FIPPA and MFIPPA, with the exception of the time involved actually redacting content. Besides watching the footage itself, making a correct determination can involve internal discussions and even outside consultations, none of which are chargeable to the requestor as “preparation time”.

Publicly Available Information (FIPPA s.22 / MFIPPA s.15)

Fortunately, a recent appeal decision from the Information and Privacy Commissioner of Ontario may present a partial solution to this dilemma, by making it clear that in some cases, institutions can replace the standard FOI fee structure with a different fee structure that is better suited to a particular type of records.

The legislative basis for this recent decision is the “Publicly Available Information” exemption (FIPPA s.22 / MFIPPA s.15), also known as the “Information Soon to be Published” exemption. As further discussed below, the decision serves as a strong precedent for other institutions wishing to implement their own alternative fee systems for certain types of public records requests.

Order MO-4384

In Order MO-4384 (York Regional Police Services Board) decided May 30, 2023, the York Regional Police Service (YRPS) received a request for access to crime scene photographs related to a specified incident. YRPS issued a decision denying access to the photographs under section MFIPPA s.15(a), which covers information that is published or is otherwise currently available to the public.

The requestor appealed the police’s decision.

The relevant records were 32 crime scene photographs. Under a municipal by-law which was passed under section 391 of the Municipal Act, the police were permitted to impose fees or charges for services. The by-law included a “Schedule A” which listed the applicable fee as $51 for 10 photographs, resulting in a total fee of $153 [sic] for all 32 photographs.

On the basis that the photographs in question were available to the public, albeit for a fee, the police refused to provide the photographs in response to the requestor’s FOI request, citing s.15(a) of MFIPPA. The police instead referred the requestor to the existing process for obtaining such photographs. The applicant refused to pay fees for the photographs in question, and the matter proceeded to adjudication.

Citing IPCO orders P-327, P-1387 and MO-1881, Adjudicator Anna Truong found:

[12] [For section 15(a) of MFIPPA] to apply, the institution must establish that the record is available to the public generally, through a regularized system of access, such as a public library or a government publications centre.

[13] To show that a “regularized system of access” exists, the institution must demonstrate that:

– a system exists

– the record is available to everyone, and

– there is a pricing structure that is applied to all who wish to obtain the information.

Helpfully, Adjudicator Truong determined that the YRPS’s system for requesting crime scene photographs met all of these requirements:

[29] In summary, as required by section 15 (a) of the Act, the police have demonstrated that a system exists, the photographs are available to everyone, and there is a pricing structure that is applied to all who wish to obtain them. Accordingly, I find that section 15(a) applies to the photographs at issue because the police have established that the photographs are currently available to the public through a regularized system of access.

Adjudicator Truong also found that the fee being charged for the photographs was “not so prohibitive that it would amount to an effective denial of access”, and that the police had properly exercised their discretion under 15(a) not to disclose the photographs in response to the FOI request when an alternative system existed for obtaining such records. (The appellant for their part did not argue that the fee being charged was prohibitive, nor did they make any representations with respect to the police’s exercise of discretion in applying 15(a).)

Implications and Limitations

The decision described above is consistent with earlier IPCO decisions dealing with publicly available information. It was already understood that such “publicly available” information did not have to be provided free of charge. (Other decisions even make it clear that such information does not have to be provided by the institution itself, and can even be provided by a private institution so long as the information is available to all who request it: see, for example, Order PO-2737.) However, it is helpful to know that IPCO’s support for this interpretation of the publicly available information exemption remains unchanged, and to see IPCO granting its approval to the specific fee structure and fees charged by YRPS in this case.

Fee Precedent

Let’s now consider the amount of the fee charged here, specifically, $51 for 10 photographs, resulting in a total fee of $153 for the 32 photographs requested.

What would the YRPS have charged under the standard MFIPPA fee structure? Assuming the search time is negligible, and no “preparation” time is involved, I would hazard a guess that the usual fees for a request like this may well have been under $20. Therefore, it would seem the fees charged under an alternative records disclosure system do not have to be closely comparable to what the institution would have collected processing the same request as a regular Freedom of Information request under FIPPA or MFIPPA.

Why should the institution be allowed to charge more under its own “alternative” system for disclosing records? Perhaps these alternative records disclosure systems are intended to provide flexibility for some “user pay” contribution towards the creation and maintenance of the records in question; i.e., in some cases it may be more fair to charge more to the individuals or companies who actually rely on certain records. Alternative public record disclosure systems offer the flexibility to do this.

It may also be that the IPCO is granting special deference to the fees here because they were included in a by-law, rather than simply being set by the institution itself. Having fees set out in a by-law may be perceived as more democratic than fees set entirely at the discretion of the institution.

Limitation: Personal Information

An institution may not be able to rely on the Publicly Available Information exemption set out in FIPPA s.22 and MFIPPA s.15 when dealing with requests for personal information, specifically when the version of the requested records disclosed to the public differs from the version that would be disclosed in response to an FOI request for personal information.

Consider the example of a municipality that posts minutes of its meetings to its website. Personal information contained in the minutes would have to be removed before the minutes could be published online. If a requestor asked for a copy of such minutes in an FOI request for general records, the municipality could refuse to provide them on the basis of MFIPPA s.15(a), and tell the requestor to go download the minutes from its website instead. However, if an individual whose personal information was redacted from such minutes submitted an FOI request for the unredacted version, the municipality would not be able to rely on s.15(a) to refuse the request because the version of the minutes on its website would not be the same as the version that the requestor was entitled to receive in response to their FOI request.

For publicly available records which make personal information available without any redactions, the institution would be able to rely on the Publicly Available Information exemption, since the published version of such records is the same as what would be disclosed under an FOI request. (Examples of records with unredacted personal information may include property ownership records or business registration records.)

Video Footage

Could the decision in Order MO-4384 provide a partial solution to the problems posed by body camera footage and other video recordings, including security camera footage, and video recordings of meetings? If IPCO is agreeable to an institution charging $51 for ten photographs, what fee might IPCO be willing to support “per hour” or even “per minute” of video content? (Is it relevant that a single second of video footage contains anywhere from 24 to 60 still images?) Is there a fee that IPCO would find reasonable, and that would more rationally reflect the actual labour involved in preparing a video for public disclosure? A more rational fee structure for video requests may have the additional benefit of keeping such requests reasonably narrow and proportionate to the work involved.

Conclusion

It is all too common to complain about the obsolete fee structure found in FIPPA and MFIPPA. But in its Publicly Available Information exemption (FIPPA s.22 / MFIPPA s.15), the legislation provides institutions with an opportunity to create better fee structures that address the challenges posed by modern electronic records such as emails and bodycam footage.

Decisions such as Order MO-4384 appear to show that the Information and Privacy Commissioner of Ontario will support such alternative fee structures so long as:

• an alternative system exists,
• the record is thereby available to everyone, and
• the pricing structure is reasonable and is applied to all who wish to obtain the information.

Provincial and municipal institutions in Ontario should consider establishing new systems and fee structures to help them respond to public record requests of all kinds in a timely and efficient fashion to serve the public better.

FOI Software

The best way to empower your institution to respond to all kinds of requests in a timely and efficient fashion is to use the FOI Assist software.

With the FOI Assist software, you no longer need to use templates to prepare acknowledgement letters, decision letters, and other FOI communications, because FOI Assist automatically generates ready-to-go correspondence in full compliance with the latest guidance applicable to Ontario.

Of course, the FOI Assist software tracks fees and deadlines, and prepares your Annual Statistical Report as well. It will even send you an email when a request deadline is approaching, or when it’s time to file your annual report.

The FOI Assist software runs “in the cloud” and is accessed via your web browser. It has a modern, easy-to-use interface. A 30-minute videoconference is all it takes to get your institution up and running.

Book a demonstration to see for yourself what the FOI Assist software can do for you.