Step 5: Request a fee waiver or make a complaint
There is no fee for submitting a request for access to records in BC and no fee may be charged by a public body for providing you with access to your own personal information. Federal ATI requesters are charged an initial fee of $5 when they submit a request (money order or cheque payable to the Receiver General of Canada).
If a large number of records are involved in your request for non-personal information, or your request involves a lot of copying, computer processing or search and preparation time, a public body may require that you pay a fee before providing a response. Under the federal act, the first five hours of search and preparation are free, or the first three hours under the BC Act, and most institutions will not charge processing fees if they are below $25.00. You can also ask to view the records in a reading room, instead of having them all photocopied, to save costs. A public body is not allowed to charge for time spent severing (deleting) information from records. Sometimes government staff who prepare records for disclosure may not understand this fact, so you should make sure you have not been charged for severing.
However, fees are often used by public bodies to either discourage requests or persuade requesters to narrow their focus. You are entitled to ask for a refund or fee waiver for any fees that are levied, and if you intend to do so, you should do it in your initial request. A fee will not be waived unless you ask for a waiver. The public body must respond in writing within 20 days after receiving your request for a fee waiver. You may be required to pay a deposit in advance, and during the period between the time you are given the estimate and the fee or deposit is agreed upon and either paid or waived, the 30-day response period is suspended. Some people will chose to pay the deposit and then challenge the overall fee, in order to keep the clock ticking on their request. The public body cannot require you to pay the full estimate before responding to your request.
BC’s Freedom of Information and Protection of Privacy Act says that fees may be waived if you cannot afford them or if for any other reason it is fair to excuse payment. The Act also says fees may be waived if the information relates to a matter of public interest, such as the environment or public health or safety. However, the reality is much different than the wording suggests and it is rare for a public body to waive a fee rarer still if the information you are seeking is sensitive and the public body is reluctant to disclose it. Still, you should try if the request you are making is genuinely in the public interest as defined by the FOIPP Act. You will need to submit in writing a defensible explanation as to why you should not be charged a fee, with as much proof as possible to convince the public body that it should waive the fee. Send your request for a fee waiver to the person who sent you the fee estimate.
Fee waiver request criteria
Many public bodies and organizations, including the provincial government, have a policy that fees should be charged under the Act in order to allow recovery of a portion of the costs of processing a request. However, such policies are not a substitution for reviewing section 75(5) to determine if a fee can or should be waived.
The Information and Privacy Commissioner has determined that each public body covered by the Act has the ability to exercise its discretion in an appropriate manner (order 98-1996 p5). Bear in mind that the discretion of the head of the public body to grant a fee waiver is permissive and not mandatory (order 90-1996). In other words, public bodies can’t be forced to provide you with a fee waiver, so make it as easy for them as you can. The public body must consider the records being requested and decide whether, in its opinion, they relate to a matter of the public interest. The focus should be on the nature of the information.
Knowing this, you should prepare your fee waiver request with an understanding that the public body will endeavour to follow these steps and in doing so will consider a number of factors/questions as laid out below. Don’t expect the public body to ask you these questions – provide answers where you can to the questions the public body will be considering and supply those answers with your fee waiver request.
- Have detailed written reasons been received from applicant?
- Is the request reasonable in scope?
- Is the applicant open to narrowing the request?
- Are the requested records responsive to the particular needs of the applicant, or is their relevance questionable?
What counts as a matter of ‘public interest’?
‘Public interest’, broadly defined, means that the issues in question in the records either are issues currently under discussion and/or analysis among the public or are issues that would generate such discussion, were the public aware of the material. Factors that a public body will consider when determining whether access to records is in the public interest include:
- Is the request about a specific definable issue?
- Is it explicit enough to relate directly to a public interest?
- Is it a broad general request that automatically assumes the public has a distinct interest in everything?
- Is the issue a subject of current public debate and will release of the information contribute to the public’s understanding of the issue?
- Do the records shed light on how the public body is spending public funds or how it is allocated public resources (land, natural resources, etc.)?
- Will there be an immediate and significant impact of the information the public?
- Who will benefit or be affected by the release of the information?
- How large a portion of the public is concerned with the issue?
- Does the information raise issues that will increase public concern?
- Is the information related to issues of public health or safety?
- Is the issue related to an environmental concern?
- Does the situation being reported in the records represent a potential for harm to the public?
- Is release of the information required for public understanding of a major new priority, law, policy, program or service?
- Will disclosure of the information foster public body accountability and transparency to the public?
- Is the issue topical and included in public debate or discussion?
- Would dissemination of the information yield a public benefit by disclosing an environmental, public health, or safety concern?
Fee waivers and the public interest
If the public body decides that the records do relate to a matter of public interest, then it must then determine whether the applicant should be excused from paying all or part of the estimated fees. The focus here should be on the applicant and the purpose for making their request.
- Has the applicant provided evidence that he or she cannot afford to pay the estimated fee?
- Has the applicant provided any other reason(s), other than public interest, why he or she should be excused from paying the estimated fee?
- Is there another avenue by which this information will be disseminated to the public or through which the public interest will be satisfied, in a timely fashion?
- Does the applicant have the ability to disseminate the records to the public?
- Does the applicant intend to disseminate the records in a manner capable of encouraging public debate or providing public understanding of the issue?
- To what extent do the actual costs of collecting, preparing, producing and disseminating the information exceed the fee estimate?
- Has the ministry responded to previous request by the applicant without charging fees:(is so, perhaps it is now appropriate to charge?)
- Is the fee estimate large?
- How does it compare to the actual cost?
- Will the applicant benefit financially from the disclosure of the information?
- Will processing the request unreasonably interfere with the operations of the public body?
- If the records are subject to severing or some of the records are not being released, would release of the remaining information further public understanding or debate on the issue?
- Does the applicant have a funding source to help pay the fee?
- Were the legislated time frames for processing the request met by the public body?
- Has the information already been made public?
Providing this information to the public body up front will also help you if you end up having to ask the Information and Privacy Commissioner to review a public body’s decision to deny you a fee waiver.
Making the case for a fee waiver in the public interest is usually only successful when done by the media or public interest groups, and more often than not, requests for a fee waiver are denied by the public body. You can request the Information and Privacy Commissioner to review a public body’s decision to deny your request for a fee waiver, but you are required to first ask the organization to reconsider their decision to deny you the fee waiver. Don’t omit this step as the Commissioner’s Office will only send you back if you do.
If you are denied access to the records you have requested, or information has been severed from them, you have a right to request a review by the Information and Privacy Commissioner. As with fee waivers, before going to the Commissioner’s Office, be sure to ask the public body to review their decision to deny access or sever information. If you decide to ask for a review, include both the first and second responses from the public body. Your request for review or complaint must be made in writing within 30 days of the day you receive the public body’s written response to your request. Attach a copy of your original request to the public body and, if you have received a letter of response from the public body, attach a copy of that as well.
Even if a public body determines it does not have the records you are requesting, or has only a portion of them, it still has a legal duty to assist you and must transfer your request to another public body that is in a better position to respond. The public body must notify you in writing that it has transferred your request, or indicate it has no records and provide other written assistance to you. If you doubt the public body’s response, you can ask the Public Body to reconsider, and then appeal to the Information and Privacy Commissioner. For more information on this, view the topic ‘Make a complaint or request a review.’