Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 157-1997
March 20, 1997
INQUIRY RE: Decisions of the Ministry of Attorney General to deny a request
for a reduction of a fee estimate and a request for 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.bc.ca
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 January 29,
1997 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of the applicant's two-part
request for review of decisions of the Ministry of Attorney General, the first
dealing with the Ministry's refusal to reduce a fee estimate for providing the
applicant with records relating to a Residential Tenancy Branch arbitrator, and
the second dealing with the Ministry's denial of the applicant's request for a
fee waiver.
2. Documentation of the inquiry process
On September 8, 1996 the applicant requested correspondence, expense vouchers,
case files, and decisions of an arbitrator for the Residential Tenancy Branch.
On September 18, 1996 the Ministry sent the applicant a fee estimate of
$16,432.50.
On September 23, 1996 the applicant sent the Ministry a revised request in
which he asked for only five of the arbitrator's files. On October 3, 1996 the
Ministry responded to the applicant with a revised fee estimate of $112.50.
The Ministry's estimate included: "Time spent photocopying the records
requested..." and showed a charge for 2.5 hours at $30 per hour, totaling $75,
plus a charge for: "Approx. 150 pages at $0.25/page..." totaling $37.50. On
October 11, 1996 the applicant objected to the Ministry's estimate. On October
16, 1996 the Ministry responded that it regarded the applicant's letter as a
request for a fee waiver and that the fee estimate would stand.
On October 19, 1996 the applicant requested a review of the method the
Ministry used to calculate the fee estimate and, on October 22, 1996, the
applicant clarified his request to include a review of both the Ministry's
refusal to reduce the fee estimate and its refusal to waive fees.
3. Issues under review at the inquiry
The first issue to be examined in this inquiry is whether or not the Ministry
correctly applied section 75 of the Act and section 7 of the Regulation when
calculating the fee estimate, and whether or not the applicant's request for a
reduction of the fee estimate is justified.
The second issue is whether or not the Ministry correctly applied section 75
of the Act to the applicant's request for a fee waiver.
Section 75 of the Act reads in part as follows:
Fees
75 (1) The head of a public body may require an applicant who makes a request
under section 5 to pay to the public body fees for the following services:
(b) preparing the record for disclosure;
(c) shipping and handling the record;
(d) providing a copy of the record.
....
(4) If an applicant is required to pay fees for services under subsection (1),
the public body must give the applicant an estimate of the total fee before
providing the services.
(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,
(b) the record relates to a matter of public interest, including the
environment or public health or safety.
....
4. Burden of proof
Section 57 of the Act establishes the burden of proof on the parties in
an inquiry and is silent with respect to a request for review about a decision
concerning a request to alter a fee estimate determined under section 75 of the
Act. I decided in Order No. 137-1996, December 17, 1996, that the burden of
proof in these circumstances is on the public body, in this case the
Ministry.
Section 57 is also silent with respect to a request for review about a
decision concerning a request for a fee waiver under section 75 of the Act. I
decided in Order No. 90-1996, March 8, 1996, that the burden of proof in these
circumstances is on the applicant.
5. The applicant's case
The applicant is seeking various records of an arbitrator retained by
the Residential Tenancy Branch of the Ministry, including expense vouchers and
the general contract under which he or she was hired. He is apparently seeking
to calculate the average cost of an arbitration hearing. Although he has
narrowed his request with the assistance of the Ministry, he submits that there
has not been an adequate search for the records he is seeking. He objects as
well to the fact that he is being charged a flat hourly rate for the time spent
photocopying rather than at a page rate for what is actually copied. In this
case, he calculates that his fee is actually less than $50.00 and thus should
be waived.
The applicant believes that it is in the public interest for the arbitration
decisions of the Residential Tenancy Branch to be disclosed and relies in this
connection on my Order No. 142-1977, January 15, 1997. He also invokes
section 25 of the Act. He submits that it is contrary to the public interest for the
decisions of such arbitrators not to be published: "How then are landlords and
tenants able to manage their affairs, if they have no access to these
arbitration decisions? It ... makes for many a needless dispute between
landlords and tenants." The applicant claims that the director of the
Residential Tenancy Branch has decided not to publish such decisions.
It is the applicant's view that if the Ministry shares the decisions of its
arbitrators with him free of charge, "the number of arbitration hearings will
fall rather than increase and the government will save money. Rather than
assessing a fee for these records, the government should in fact be paying me a
fee."
6. The Ministry's case
The Ministry's position is that it provided the applicant with a fee
estimate and instructions as to how to apply for a fee waiver, which he did not
expressly do. (Submission of the Ministry, paragraphs 3.03-3.07) The Ministry
submits that the two issues in this inquiry are 1) its calculation of the fee
estimate and 2) the appropriateness of its exercise of discretion not to waive
or reduce the fees charged. (Submission of the Ministry, 4.03) It submits
that its calculation of its fee estimate was fully in accordance with
section 75 of the Act and section 7 of the Regulation. (Submission, 5.13)
With respect to the first issue, the Ministry has analyzed the words
"preparing the record for disclosure" as used in section 75(1)(b) of the Act
and "providing a copy of the record" as used in section 75(1)(d). In its view,
photocopying a record is part of preparing it for disclosure and therefore fees
for this service are chargeable. (Submission, 5.03-5.06) It then views
providing a copy of the record as a separate service from preparing the record
for disclosure.
The Ministry then analyzed the schedule to section 7 of the Regulation which
lists the maximum fees chargeable for each of the services set out in
section 75(1) of the Act. It argues that these must be read as corresponding to the
services referred to in the Act: locating, retrieving, preparing, and producing
a record as separate activities. (Submission, 5.08-5.09) With respect to the
issue of copying and providing copies of records, the Ministry argues:
Where an applicant wants to keep a copy of a record, it makes sense to charge
on a per page basis if what is being charged for in providing this service is
really the paper and ink that is being handed over to an applicant. If a copy
of a record is not being given to an applicant to keep, but rather is being
kept by the public body after the applicant views it, there is nothing being
given to the applicant to keep, to support charging fees on a per page basis.
But regardless of whether an applicant receives a copy of a record that s/he
can keep, or whether a public body keeps that copy after an applicant has
viewed it, there is reason to charge for time spent on photocopying the record,
as part of `preparing the record for disclosure.' The public body submits that
that is separate from, and in addition to, any per page charge that applies
because of the method of access preferred by an applicant. (Submission,
5.10)
I have discussed this specific matter further below.
The Ministry's reply submission addressed the second issue identified above,
that is, whether it properly exercised its discretion in not granting a fee
waiver to the applicant. The Ministry submits that I have only limited
authority to oversee its decision on this matter, relying on Order No. 55-1995,
September 20, 1996, p. 8. I have discussed below its more specific submissions
on the issue of the fee waiver.
7. Discussion
As part of his submission in this inquiry, the applicant included
eleven pages of his correspondence with the Ministry. This had the benefit of
allowing me to see how inappropriately he treats public servants from whom he
wishes to obtain services under the Act.
Charging for photocopying
The Ministry's position is clear: "Disclosure is disclosure, whether it is
effected by giving an applicant a photocopy of a record which the applicant may
keep, or whether it is effected by allowing an applicant to view a copy of a
record which s/he is not permitted to keep." (Submission, 5.11) I agree that
in both instances photocopying will have to occur, especially if severing has
to happen; a public body will indeed have to make a copy of the record, with
the information severed, in order to prepare a record for disclosure; this
process has become relatively easy with the latest photocopiers. (Submission,
5.11)
The Ministry also offers the practical argument that photocopying, stapling,
sorting, and assembling records often now happens at the photocopier itself.
Thus there appears to have been a merger of the activity of copying with
collating, stapling, and assembling records for disclosure, for which the Act
stipulates separate charges: "it simply would not make sense, or be
financially responsible, to require a public body to sort and staple separately
from photocopying, in order to keep track of what it may charge for and what it
may not charge for." (Submission, 5.12)
The applicant has gone on at great length about the inappropriateness of some
of the specific charges in the Fee Schedule for photocopying and the like.
Since there is nothing peculiar or unauthorized about the Ministry's fee
practices in this inquiry, I have decided not to challenge the fees assessed.
I note that public bodies may charge for "producing the record"
(section 75(1)(a)), "preparing the record for disclosure" (section 75(1)(b)) and
"providing a copy of the record" (section 75(1)(d)). This permits public
bodies to charge for the time spent making copies of original records prior to
severing the copies, as well as the usual per-page charge for the photocopies
of the final severed records. Public bodies cannot charge for the time spent
severing records (section 75(2)(b)).
The Government of British Columbia's Freedom of Information and
Protection of Privacy Act Policy and Procedures Manual, Chapter
C.7, page 5 (September 1994 edition) provides helpful guidance on the issue of
fee calculations:
Where an applicant asks to examine a record rather than receive a copy of the
record and it is not possible to provide access to the original record, the
public body may charge a fee for the time spent copying a record in preparation
for the applicant to examine the record. The public body may not, however,
charge copying fees (e.g., 25 cents a page) for a record prepared for
examination. Copying fees apply only for copies given to the applicant.
Example
An applicant requests an opportunity to view a report that contains personal
information of a third party. The third party's personal information must be
severed from the report. The public body copies the original record to produce
a working copy. The public body severs the working copy and then makes a final
copy to show to the applicant. The applicant may only be charged a fee for the
time it takes to photocopy the final copy of the report.
Of course, if, after examining a report, the applicant wishes to take a copy of
the records, the public body may charge the usual per-page fee for
photocopying, since this charge is not for time spent photocopying but rather
for the cost of paper itself.
Grounds for a fee waiver
I have discussed, extensively, in two recent Orders (Order No. 154-1997,
March 18, 1997 and Order No. 155-1997, March 18, 1997) my
jurisdiction to oversee the exercise of discretion by a public body over the
granting of fee waivers. In this case, however, I defer to the Ministry in its
decision not to grant a fee waiver to the applicant.
The Ministry submits that none of the records requested by the applicant
relate to a matter of public interest. He asked for access to an arbitrator's
case files, not just the decisions, or reasons for decisions, that the
arbitrator reached in those cases. In either case, the Ministry submits that
these are not matters of public interest:
Given that written reasons are not always produced with a decision of an
arbitrator, and that an arbitrator is required to make his or her decision on
the merits of the particular matter before him or her and is not bound by legal
precedent, the written reasons may be of limited value to tenants or landlords.
The Public Body submits that the fact that written reasons for arbitrators'
decisions are not generally required under the Residential Tenancy Act
is evidence that the Legislature did not deem them to relate to a matter of
public interest. (Reply Submission, paragraph 4.03)
In a subsequent submission, the Ministry acknowledged that the amended
Residential Tenancy Act does require arbitrators to give written reasons
for their decisions to the parties to an arbitration, but there is still no
requirement that such written reasons be made available to the public.
I agree with the Ministry that the applicant did not provide it with
sufficient information to support a request for a fee waiver. (See Order No. 55-1995,
p. 6) More importantly, I agree with the Ministry that the applicant
has not met his burden of proving "that the head acted in an unreasonable
manner in coming to the opinion that the records do not relate to a matter of
public interest. The Applicant has not even presented any argument or evidence
to support such a finding." (Reply Submission, 4.05) I also agree with the
Ministry that section 25 of the Act has no application to the records in
dispute in this inquiry. (Reply Submission, paragraph 5.02)
I do not agree with the applicant's submission in a letter to me of January
29, 1997 that "all requests whose purpose is to make public bodies more
accountable and be held up for public scrutiny are in fact requests which are
in the public interest." That is a misreading of the Act. If there are
special reasons why he has been selected to subject the Residential Tenancy
Branch to scrutiny, he has not adequately explained them to me.
Objections of the applicant
The applicant made a series of objections during the inquiry process. He
objected to:
I do not consider paragraph 1(a) of the Portfolio Officer's amended fact
report to be inaccurate. It is qualified by paragraph 3, which states that the
applicant subsequently narrowed his request. These facts are not in issue
between the parties and are not central to the issues under review in this
inquiry.
My Office's procedures for accepting in camera evidence and submissions
follow the direction provided in section 56(4) of the Act. My procedures for
not accepting, in an inquiry, records produced in the mediation process are
necessary to preserve the integrity of that process. The mediation process is
separate, and all information exchanged between the parties and my Office is
treated in confidence, unless otherwise agreed to by the parties.
With respect to the burden of proof, I rely on my previous rulings to
establish that the applicant must bear the burden of proving that the Ministry
erred in its exercise of discretion under section 75(5) of the Act.
The applicant also submitted that he should be permitted to make a reply
submission to all of the Ministry's submissions, not just its initial
submission on the calculation of the fee estimate. He has refused to submit a
reply submission, as required by our procedures, unless he can respond to both
of the Ministry's submissions. The procedures of my Office do not permit a
reply to a reply submission, although I have occasionally deviated from that
practice upon specific application where new points are raised that require a
response. I do not find such a need in the present inquiry, despite the
protestations of the applicant to the contrary. I so informed the applicant in
a letter dated January 31, 1997. However, I did agree to accept a late
submission of eight pages from the applicant in order to attempt to finalize
these particular matters. It is worth noting that this late submission is in
fact highly repetitive of arguments previously made to me in this inquiry.
Section 70(1)(b) of the Act requires public bodies to make substantive rules
and policy statements available to the public without a request under the Act.
Despite his unwillingness to make the submissions required by my Office's
procedures, the applicant did ask me to order the Residential Tenancy Branch to
publish all of its arbitration decisions. Section 70(1)(b) states:
70(1) The head of a public body must make available to the public, without a
request for access under this Act,
My view is that the applicant has misread the meaning of this section of the
Act, which is intended to encourage public bodies to prepare and make available
policy manuals to the public as well as "substantive rules or policy
statements." I do not see how this can be construed as my having authority to
order publication of arbitration decisions. If the Residential Tenancy Branch
in fact has a compilation of "substantive rules" for landlord-tenant
relationships that have resulted from decisions of arbitrators, this should be
made available to the interested public, in some accessible form, but that is
quite a different issue than somehow requiring it to publish all of these
decisions.
8.
Order
I find that the head of the Ministry of Attorney General complied with
section 75(1) of the Act and section 7 of the Regulation with respect to the
calculation of the fee estimate in this case. I also find that the head of the
Ministry of Attorney General properly exercised her discretion under
section 75(5) not to excuse or reduce the fees to the applicant. Under
section 58(3)(c), I confirm the decisions of the Ministry on the estimated fees to be
charged in this case.
March 20, 1997
David H. Flaherty
Commissioner