A recent decision of the Information and Privacy Commissioner of Ontario (IPCO) provides a cautionary tale about the importance of crafting fee estimate letters with precision and compliance in mind. Today’s article examines the key lessons from this case and highlights how following best practices when preparing FOI correspondence can help institutions avoid appeals and ensure decisions withstand scrutiny.
Background
In IPCO Order MO-4569 (City of Greater Sudbury), decided September 25, 2024, an individual requested statistical records relating to animals euthanized by a contracted animal control service provider over a five-year period. The City of Greater Sudbury initially issued a fee estimate of $33,333.00, citing the labor-intensive nature of extracting and reviewing approximately 10,000 records held by its contractor.
The appellant challenged the reasonableness of the fee estimate. After an inquiry, the adjudicator reduced the fee by two-thirds to $11,111.00, finding the City’s original estimate was unreasonable and lacked the required level of detail.
Fee Estimates Must Be Detailed and Transparent
According to both the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), fee estimates must include a clear and detailed breakdown of how the fee was calculated. Simply quoting a total cost without sufficient explanation is insufficient.
In this case, the City’s estimate relied on a quote from its contractor, stating that reviewing 10,000 records would take two minutes per record at $100/hour. However, the adjudicator found this calculation lacked important details, such as why every record needed review, and whether efficiencies (e.g., narrowing the search to euthanized animals only) had been explored.
Fee provisions must be applied in a reasonable and rational manner
Institutions are obligated to apply FIPPA and MFIPPA’s user-pay principle reasonably and rationally. In this case, the adjudicator criticized the City for not exploring more efficient methods of conducting the search, such as reviewing only records of euthanized animals rather than all records. The adjudicator noted that it was open to the City to ask the contractor for further details when they received a fee estimate of over $33,000, but “they chose not to do so, instead relying on an invoice containing only a bare calculation”.
Before issuing a large fee estimate, institutions should:
- Engage with staff and contractors to identify efficient search methods.
- Record any cost-saving measures considered or implemented.
- Consider including an explanation in the fee estimate as to why the proposed search approach is necessary and reasonable.
The “Invoice” Rule: A Quote is Not a Justification
Under FIPPA and MFIPPA, institutions may charge fees based on costs incurred, including those specified in an invoice received from a third party. However, as noted in the decision, a quote alone is not enough; the fee must still be reasonable and supported by sufficiently detailed evidence.
When relying on a third-party quote to justify a large fee estimate:
- Ask the contractor to provide a detailed explanation of their calculations.
- Ensure their methodology aligns with the requirement to apply the fee provisions in FIPPA and MFIPPA in a reasonable and rational manner.
- Be prepared to justify why the quote represents a fair and accurate estimate of costs.
Avoid the Risk of Appeals and Fee Reductions
The adjudicator in MO-4569 reduced the fee from $33,333.00 to $11,111.00, citing the City’s failure to demonstrate the reasonableness of its estimate. Such a reduction highlights the risks institutions face when FOI correspondence is not prepared properly.
To minimize the risk of appeals:
- When preparing FOI correspondence, follow the applicable precedents and guidance.
- For fee estimates, the IPCO guidance document Fees, Fee Estimates and Fee Waivers is especially relevant.
- As outlined in the IPCO guidance document above, when preparing a fee estimate, institutions must include a line-by-line breakdown of costs for each step of the search and preparation process.
- Ensure fee estimates are reasonable, justified, and consistent with past decisions.
- Consider explaining why your fee estimate is well-founded and reasonable in your fee estimate letter. (That said, sometimes “less is more”. Deviating from standard language in explanations may unintentionally invite scrutiny and increase the likelihood of an appeal.)
Why Well-Written FOI Letters Matter
Order MO-4569 underscores a critical point for institutions: FOI letters are more than just communication—they are a cornerstone of compliance with FIPPA and MFIPPA. A well-prepared letter indicates a thorough understanding of the legislation, promotes transparency, and reduces the likelihood of appeals or overturned decisions.
Fee estimate letters, in particular, must be detailed, reasonable, and supported by evidence to meet the high standards of accountability expected under the Acts. By crafting FOI correspondence that adheres to the relevant guidance, institutions not only fulfill their legal obligations but also build trust with requesters and uphold the principles of open government.
How the FOI Assist Software Can Help
Navigating the complexities of FOI compliance can be challenging, particularly when issuing fee estimates and other FOI correspondence. The lessons from Order MO-4569 underscore the importance of adherence to established rules and guidance when conducting the FOI process.
The FOI Assist software is purpose-built to help Ontario’s provincial and municipal institutions streamline their FOI workflows and stay compliant with the legislation.
Here’s how the FOI Assist software can help address some of the key issues raised in this decision:
Generate Detailed Fee Estimates
- FOI Assist guides users through the fee estimate process, ensuring compliance with the requirements.
- The software includes built-in tools for calculating search times, preparation costs, and other allowable fees, minimizing the risk of overcharging or incomplete estimates.
Track Discussions and Correspondence
FOI Assist maintains a full history of all FOI communications, including fee estimates and notes of discussions with contractors or third parties. This ensures that decisions are well-documented and defensible during appeals.
Ensure Consistency
By automating key parts of the FOI process, FOI Assist ensures that institutions apply rules and guidance consistently. This reduces the risk of errors or oversights that can lead to overturned decisions.
Streamline Reporting and Appeals
With advanced reporting capabilities, FOI Assist allows institutions to track metrics and quickly produce evidence to demonstrate compliance.
Always Up-to-Date with the Latest Legislation and Guidance
One of the standout benefits of the FOI Assist software is its commitment to staying current with the latest developments. Compliance with FIPPA, MFIPPA and the regulations is a moving target, and even decisions such as Order MO-4569 can refine the interpretation and application of the rules.
The FOI Assist software is continuously updated to reflect changes to the legislation, guidance, and best practices. Institutions can trust that their work product is compliant, without the need for manual adjustments to keep up-to-date.
With FOI Assist, institutions can confidently manage FOI requests, reduce the risk of appeals, and focus on their core mission of serving the public. By combining efficiency with compliance, FOI Assist ensures that the lessons of decisions like Order MO-4569 are not just understood, but seamlessly integrated into everyday FOI processes.
For more information, contact FOI Assist and discover how the FOI Assist software can help your institution master FOI compliance and Make Freedom of Information EasyTM.
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