March 7, 1999

To:Budget Committee

From:City Clerk and Commissioner of Corporate Services

Subject:Chargeable Fees for Providing Access to Information

Purpose:

This report responds to the request from the Budget Committee for a report on implementing a change to the Municipal Freedom of Information & Protection of Privacy Act in order to recover 50% of the cost of providing legislatively mandated access and privacy management services.

Funding Sources, Financial Implications and Impact Statement:

This report identifies the fees the City is permitted to charge for responding to requests under access legislation and the statutory change required in order to achieve savings of $350,000 annually.

Recommendations:

It is recommended that this report be received for information.

Council Reference/Background/History:

The Municipal Freedom of Information & Protection of Privacy Act (the Act) establishes the fees the City is permitted to charge for responding to formal requests for access to information. The Act imposes a mandatory application fee of $5.00 and a series of fees which may be charged including copying and search time. No search costs may be charged to an individual requesting access to their own personal information. A complete list of fees is attached.

Discussion:

The Act is based on the philosophy that individuals have a right of access to information held by government institutions and that privacy rights must be respected in the delivery of programs and services. The Act's fee structure avoids creating a financial barrier to exercising the right of access and promotes open and accountable government. Fees schedules established under access legislation are consistent at all levels of government. The standard application fee is $5.00.

To control costs, the Corporate Access & Privacy Office (CAP) manages many access requests through an informal disclosure process. This reduces costs involved in meeting statutory notification and reporting requirements, cheque processing, and the costs of preparing appeal submissions to the Information and Privacy Commission\Ontario (the IPC). About 50% of requests are diverted to this less costly process. A projected 2,000 requests will be managed informally in 1999.

To generate savings of $350,000 would require a dramatic increase in fees government institutions are permitted to charge for responding to formal requests. Based on a projected 2,000 formal requests in 1999, it would be necessary for the province to agree to raise the mandatory application fee from $5.00 to $150.00 to achieve savings of $300,000. All other processing costs would also need to be increased to achieve the additional $50,000 in savings.

Raising the mandatory application fee from $5.00 to $150.000 is the most reliable means of recovering costs. The reason is that payment of the application fee is mandatory and, currently, it may not be appealed to the IPC. All other fees are appealable. On appeal of processing charges, the City must make detailed written submissions to the IPC as to the reasonableness of all charges and demonstrate that search time claimed is not attributable to poor records management practices.

The IPC may order a fee reduced or waived for a number of reasons. Fees may be waived if the fee is found excessive, if paying fees would cause financial hardship or if disclosure of the information would benefit public health or safety. Raising processing fees would result in a corresponding increase in the number of fee appeals and applications for fee waivers. These factors combined with an increase in the number of fee waivers ordered by the IPC suggests there may be little, if any, real cost recovery achieveable through increased processing fees. The greater the increase in fees, the more staff resources would be required to manage mediation processes and prepare appeal submissions.

The province introduced the mandatory application fee of $5.00 in 1996. At the time, there were deputations opposing any fee. It was argued that fees erode the openness and accountability of government and create social divisions between those who can afford to exercise their right of access and those who cannot. Members of the public frequently complain about paying fees and express the view that costs have already been paid through their tax dollars.

Approximately 90% of requests are made by private individuals with the remaining 10% being comprised of community groups and associations, businesses and the media. The range of interest is as broad as the range of services the City provides and extends from issues relating to landfill sites to information held about an individual in their own social assistance file.

Access and privacy legislation management is a high profile, high volume service. CAP has limited resources to manage the access program and address the extensive requirements of privacy legislation. There are cost and civil liability implications in failing to protect privacy in program and service delivery and in the use of electronic systems. Increased appeals related to higher processing fees will further reduce CAP's ability to address the privacy issues involved in the broad range of programs delivered by the City.

Conclusions:

To recover program costs of $350,000 annually, the province would have to agree to amend the Act to increase the mandatory application fee from $5.00 to about $150.00 (a 3000% increase) and raise all other processing fees. If a mandatory fee lower than $150.00 is established, processing fees would need to increase correspondingly and which may be ordered waived on appeal. Attendant higher resource costs to prepare appeal submissions combined with greater incidence of fee waivers suggest that raising processing costs is not a reliable means of recovering costs and may prove counterproductive.

A 100% increase in the mandatory application fee from $5 to $10 would increase revenues by $10,000 in 1999. Given the public interest in open and transparent government, it must be expected that there would be significant public opposition and outcry against any increase in fees chargeable under the Act.

The City Solicitor has been consulted in the preparation of this report.

Contact Name:

Rita Reynolds

Director of Corporate Access & Privacy

Tel 392-9683

Novina WongMargaret Rodrigues

City ClerkCommissioner of Corporate Services

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