Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 148-1997
January 30, 1997
INQUIRY RE: A decision by the Ministry of Education, Skills and Training to
deny a fee waiver
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipc.org
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner (the Office) on December 18,
1996 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of the applicant's request
for review of a decision of the Ministry of Education, Skills and Training to
deny the applicant's request for a fee waiver.
2. Documentation of the inquiry process
On August 20, 1996 the applicant requested the Ministry of Education, Skills
and Training to waive fees on his request for records, based on his inability
to pay and the public interest in the matter. On August 29, 1996 the Ministry
responded to the applicant denying his request for a fee waiver.
On September 12, 1996 the applicant wrote to the Office of the Information and
Privacy Commissioner to request a review of the decision by the Ministry of
Education, Skills and Training to deny his request for a fee waiver. The
ninety-day period for resolving the issue began on September 19, 1996 and
expired on December 18, 1996. The Notice of Written Inquiry was distributed to
the applicant and the Ministry on November 27, 1996.
On December 9, 1996 the applicant requested an adjournment of the inquiry
which the Ministry opposed. I reviewed all matters relevant to the request for
adjournment and on December 12, 1996 notified both parties of my decision to
deny the applicant's request for adjournment.
3. Issue under review at the inquiry and burden of proof
The issue to be reviewed in this inquiry is whether the Ministry's decision
not to grant a fee waiver complies with section 75(5) of the Act, which
provides that:
75(5) The head of a public body may excuse an applicant from paying all or part
of a fee if, in the head's opinion,
(a) the applicant cannot afford the payment or for any other reason it is fair
to excuse payment, or
(b) the record relates to a matter of public interest, including the
environment or public health or safety.
4. Discussion
The fee waiver
I have been presented in this particular inquiry with the standard binder,
which effectively lacks substantive contents. The essential problem appears to
be that the applicant has refused to make submissions in this case except on
procedural matters. He has objected to the fact that I have placed the burden
of proof on him rather than the Ministry with respect to whether a fee waiver
for the records that he is seeking is in the public interest. He is also
unhappy about the fact that I denied him an adjournment.
My Office has established Policies and Procedures to implement provisions of
the Act fairly and effectively for applicants, public bodies, and third
parties. The procedures have been developed and revised carefully, taking into
consideration the requirements of procedural fairness and the interests of all
parties.
An applicant who seeks a review of a public body's decision is required to
make submissions to me in an inquiry. When an applicant bears the burden of
proof, a failure to file an initial submission inevitably results in a failure
to prove his or her case.
I have determined in previous Orders (Nos.
90-1996 and
98-1996) that an
applicant has the burden of proving entitlement to a fee waiver under
section 75(5). The reasons for this are:
To be excused from paying a fee under the Act is to receive a discretionary
financial benefit; conversely, the province forgoes revenue to which it would
otherwise be entitled under the Act. Thus it appears logical that the party
seeking the benefit should prove its entitlement on the basis of the criteria
specified in the Act. (Order No. 90-1996, p. 3)
This applicant is highly experienced in the use of the Act. His refusal to
make a submission on his entitlement to a fee waiver has effectively required
me to confirm the Ministry's decision to deny a waiver.
Request for an adjournment
In the present case, I find the Ministry's objections to the request for an
adjournment to be persuasive. It pointed out that the applicant has already
paid a fee deposit and only needs to pay the remaining sum, that is the entire
fee, to obtain the records that he has apparently requested. It also denied
the applicant a fee waiver, which was supposed to be the focus of this
inquiry.
I also think that the Ministry was on solid grounds in pointing out to me that
the applicant waited until the eleventh hour to request an adjournment: "A
party with the burden of proof cannot unilaterally force an adjournment of an
inquiry by simply faxing a letter to a portfolio officer just hours before
their submission is due."
5.
Order
I find that the applicant has not met his burden of proof in this inquiry,
and that the Ministry of Education, Skills and Training was in compliance with
section 75(5) of the Act in denying a fee waiver to the applicant. Under
section 58(3)(c), I confirm the fee charged by the Ministry.
January 30, 1997
David H. Flaherty
Commissioner