The $5 Application Fee: Sorry, No Refunds!

In Ontario, institutions who respond to FOI requests must charge a $5 application fee. This requirement is set out in section 24 of the Freedom of Information and Protection of Privacy Act (FIPPA) and section 17 of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). This $5 fee applies to requests for public records and to requests for personal information as well.

Is a refund available?

What should an institution do if a requestor asks for a refund of the $5 application fee? Are there any situations where the institution should refund the $5 fee as a matter of course?

The requirement to collect an application fee is set out in s.24(1)(c) and s.48(1)(c) of FIPPA and in s.17(1)(c) and s.37(1)(c) of MFIPPA. The fee is set at $5 in FIPPA Reg. 460 (section 5.2) as well as in MFIPPA Reg. 823 (same section). This amount has remained unchanged for over 25 years.

As a starting point, neither FIPPA, MFIPPA nor the regulations under these acts describe any scenario in which the $5 application fee should be refunded. Yet the regulations do address refunds of other types of fees: specifically, when fees have been collected under an interim fee estimate but are later waived, the regulations are clear that the waived fees must be refunded to the requestor.

Can the $5 application fee be waived? FIPPA s.57 and MFIPPA s.45 describe various fees an institution can charge and when such fees can be waived. However, the $5 application fee is not included among the fees listed, which would seem to imply that it is not eligible to be waived. This is further supported by the Ministry of Public and Business Service Delivery’s FOI Manual, which states that unlike other FOI fees, the $5 application fee cannot be waived.

Given the $5 application fee cannot be waived, and there is no allowance in FIPPA, MFIPPA or the regulations for refunding the $5 application fee, is there any situation in which the fee should be returned to the requestor?

Transferring/Forwarding a Request

The FOI Manual does offer one scenario in which a returning the $5 application fee to the requestor appears to be warranted:

In the sample letters for request processing found in Appendix 4 of the FOI Manual, there is a template for a “Letter to Requester when Transferring or Forwarding a Request”.

According to this template, when a request is being transferred, if the payee information for the transferee institution is the same as for the original institution, the institution who originally received the request should inform the requestor that their $5 application fee has been transferred to the transferee institution. (This can occur, for example, when both the original institution and the transferee institution are separate provincial ministries, both of whom would generally accept payments directed to the “Minister of Finance”.)

On the other hand, if the transferee institution has a different payee, the template recommends informing the requestor “Since we are not processing your request we are returning your $5.00 application fee with this letter. Please send a new application fee to the institution listed above.” The application fee is returned to the requestor for convenience, so that the requestor can make their payment out to the transferee institution instead.

The original receiving institution could have paid the $5 to the transferee institution directly. However, given that payment by cheque remains the most common way for requestors to pay the $5 application fee, simply returning the cheque to the requestor is easier and less confusing than either endorsing a third-party cheque to a different institution, or going through the effort and expense to “cut a new cheque” from one institution to another for payment of a $5 fee. Returning the $5 cheque to the requestor seems the most practical way to avoid a disproportionate amount of financial complexity.

Extending this logic to other payment methods, a $5 fee accepted via credit card could be returned to the requestor in similar narrow circumstances, if it was actually a payment made in error (e.g., a payment that the requestor never intended to make).

Any Other Situations?

Putting aside the “rejection of a payment sent to the wrong institution” described above, are there any other situations where a refund of the $5 application fee might be warranted?

IPCO Decisions

Looking at Information and Privacy Commissioner of Ontario (IPCO) decisions regarding fee disputes, disputes over application fees are far less common than disputes over search fees, preparation fees, and other costs involved in processing an FOI request. Based on the IPCO decisions, the only area of contention regarding application fees appears to be whether a request should be split into multiple separate requests (requiring multiple $5 application fees) or can be “bundled” into one request (in which case there would be one corresponding $5 fee). Other than disputes regarding how many times the $5 application fee should be collected from a particular requestor, there appear to be no decisions which involved a dispute over application fees, nor do there seem to be any cases which contemplate the $5 application fee being returned or waived.

Purpose of the $5 Fee

As described in an earlier article (see Why Charge an Application Fee for Each FOI Request?), there are many reasons that institutions are required to charge requestors a $5 fee to access information. One important rationale is the “user pay” principle, i.e., that asking the people who use a service to pay for at least a portion of the cost of such service is both (a) fairer to those who do not use the service and (b) tends to lead to more efficient use of the service. In the absence of any application fee, one might expect to see more frivolous and vexatious requests, as well as a greater number of requests which are later abandoned by the requestor as soon as any payment becomes due.

The application fee is intended to cover at least some of the institution’s time reviewing the request, considering its validity, and possibly taking administrative steps such as entering the request into a tracking system, working with the requestor to fix any potential defects, and preparing a fee estimate or sometimes even identifying and locating the requested records. All of these steps can add up to significant work for an institution, and each may occur before any payment is made by the requestor other than the initial $5 application fee.

An FOI request is more than just an ordinary question from the public; it imposes specific legal obligations on the receiver, the additional overhead of logging the request, and provides the requestor with a right of appeal to the Privacy Commissioner. The $5 application fee can be considered a “co-pay” or a partial payment towards these additional rights and benefits.

Even in the simplest scenario, where an employee spends only 10 minutes reviewing a request, determining it is invalid, issuing a refund and then responding to the requestor to inform them that a refund will be forthcoming, the institution has almost certainly spent more than $5 in employee time and other costs processing the invalid request. Given the choice between having the $5 paid by the requestor who made the invalid request, or by taxpayers at large, it seems fairer that the requestor should pay, and specifically that the requestor should not expect a refund of their application fee in such a scenario.

Publicly Available Information

Finally, what about situations where the requested information is available through other means, and the requestor is directed to obtain the information elsewhere rather than receiving it in response to their FOI request? Should the $5 application fee be refunded in this scenario? (For example, see the earlier article Alternative Fee Systems for Publicly Available Information, which describes how the York Regional Police set up a special process for releasing crime scene photographs and insisted requestors use the special process rather than submit an FOI request for such records.)

The answer seems to lie in the existence of the Publicly Available Information exemption itself (FIPPA s.22 / MFIPPA s.15). Refusing to disclose records in response to an FOI request and instead referring the requestor to an alternative publicly available source for the records is a decision on the original request. Providing information through an alternative records distribution system rather than in response to an FOI request is technically a refusal of the original FOI request, and such refusal is justified through the Publicly Available Information exemption. So, when an institution issues a decision refering the requestor to a more appropriate mechanism for obtaining their requested records from the institution, it is thereby processing the FOI request, which suggests retaining the $5 application fee is the correct approach.

All that said, I sympathize with any institution who finds it easier to return the $5 fee rather than get into a disagreement over it! If an institution is looking to justify the return of the $5 fee, it could perhaps take the position that the submission of the FOI request itself was a “mistake”, treating the payment received similar to a cheque made out to the wrong institution. Similarly, if a requestor decides, after initially submitting an FOI request, that they would rather proceed informally, and the institution is amenable, it may be reasonable to return the $5 application fee on a similar basis.

Other Exceptional Cases

I can imagine other scenarios not directly addressed in the guidance above, such as:

• Payment via a credit card that was used without authorization
• Payment via a forged cheque drawn on someone else’s account
• A genuine mistake which might have no other remedy under the established FOI process (e.g., mistakenly submitting an FOI request to Windsor, Ontario instead of Windsor, Nova Scotia)

In usual situations such as those listed above, I imagine most institutions would not hesitate to return the payment provided.

Conclusion

That said, it can be helpful to know that by default, and in the vast majority of circumstances, the $5 application fee should be considered non-refundable, and institutions should not feel obligated to spend their time and resources issuing $5 refunds to requestors in common situations such as where:

• no responsive records exist,
• the records are available through other means,
• exemptions or exclusions apply, or
• the requestor simply changes their mind about proceeding with the request or otherwise abandons it.

In situations such as these, and many other common situations, institutions are on solid ground not providing a refund of the $5 application fee, and in fact may be helping to ensure fairness of the FOI system when they follow the “user pay” principle outlined in the FIPPA/MFIPPA by retaining payment for FOI services they have provided.

Many institutions across Ontario have reached the same conclusion that the $5 application fee is not refundable, including the City of Toronto, the Toronto Police Service, Ontario Health, Toronto District School Board, the Hamilton Police Service, the City of Sudbury, the Town of Caledon, as well as many others.

The FOI Assist Software

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