H~ 1 72012

Mr. David Akin Sun Media 207 Queen Street, Ste. 300 Third Floor Ottawa ON KIP 6E5

Our file: 113830/001 Institution's file:· A-2008-00438

Dear Mr. Akin:

Office of the Information Commissioner of Canada

112 Kent Street Ottawa, Ontario KIA lH3 Te!.: 613-995-2410 Fax: 613-947-7294 1-800-267-0441

Commissariat a. I'information du Canada

112, rue Kent Ottawa (Ontario) KIA lH3 Tel.: 613-995-2410 Telec.: 613-947-7294 1-800-267-0441

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I run writing to report the results of our investigation of your complaint, made under the Access to Infonnation Act (the Act), concerning preparation fees charged by the Department of Foreign Affairs and International Trade (DFAIT) in relation to your request for records under the Act.

I have concluded that your complaint is well-founde<;l. As is set out below, my finding is the result of a lengthy investigation, during which my office was required to reconsider a position taken by this office in 2006-2007 concerning the interpretation of the word "non-computerized" in the context of the Access to Infonnation Regulations (the Regulations).

Background

On November 5, 2008, DFAIT received your 'request under the Act for: "An electronic copy of the briefing books provided to Minister Day upon his appointment as Minister of International Trade and Minster for Asia-Pacific Gateway". The due date for a timely response was therefore December 5, 2008. On November 20, 2008, DFAIT corresponded with you via email to discuss the scope of your request. On November 28, 2008, DFAIT informed you that a preparation fee of $180 was being levied pursuant to subsection 7(2) of the Regulations. The fee was based on a charge of $2.50 per 15 minutes for the estimated 26 hours required to search and prepare the responsive records, minus 5 hours of preparation time provided for in subsection 11(2) of the Act.

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On December 22, 2008, my office received a complaint concerning the preparation fees levied which included a complaint concerning DFAIT's new "policy" [or practiceJ of charging preparation fees, as a matter of course, for all requests. You alleged that this policy or practice was contrary to the spirit of the Act, as set out in section 2 of the Act, and constitutes a barrier and obstacle to prevent Canadians from exercising their right of access to government records.

As you know, your complaint on this issue was investigated in conjunction with another complaint that we received on the same issue.

Investigation

During the course of our investigation, we confirmed that beginning in January 2008, DFAIT implemented a practice of charging preparation fees for all requests involving the processing of 500 or more pages of records. These preparation fees were levied for every fifteen minutes of time used to sever documents using redaction software as well as the time taken to verify that the printed output matched the severance analysis set out in the file.

Our investigation also confirmed that fees were charged for the preparation of all records including records that exist in electronic format (i.e. e-mails, Microsoft Word files etc.).

Our investigation therefore became focused on the following issues:

1. Was DFAIT charging preparation fees, in part, for the time taken to apply exemptions, contrary to Treasury Board Policy which provides that " ... fees cannot be charged for the cost of reviewing documents to determine whether they are exempt or excluded ... " ;

2. Did DFAIT have authority under the current Regulations to charge fees for the search or preparation of electronic records such as emails and Microsoft Word files even though subsection 7(2) of the Regulations gives a government institution the discretion to charge search and preparation fees "where the record requested [ ... J is a non-computerized record";

3. Was DFAIT's practice of invoking fees as a matter of course where 500 or more responsive records were involved, consistent with the discretion given to the head of the institution under the Act and Regulations; and

4. Did DFAIT properly exercise its discretion to refuse to waive fees pursuant to subsection 11(6) of the Act, particularly where, as in your case, DFAIT was deemed to have refused access pursuant to subsection 10(3).

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On July 7, 2010, as a result of the information obtained during our investigation, we sought formal representations from DFAIT on these issues pursuant to paragraph 35(2)(b) of the Act. DFAIT responded by letter dated October 29, 2010 .

In its response, DFAIT conceded that the "literal" meaning of the term "non­computerized" records in subsection 7(2) of the Regulations would not include e-mails, documents created in Microsoft Word or any other record produced by a computer. However, DFAIT maintained that a contextual analysis of the Act and the Regulations supported its conclusion that such documents should be deemed to be "non-computerized" records for the purpose of subsection 7(2) of the Regulations.

In this regard, DFAIT pointed out that the Act and its accompanying Regulations were enacted when computers were used to manage large databanks of information from which certain records could only be produced by programming a computer in a certain way; personal computers containing individual electronic records were, for the most part, non-existent in the workplace. Thus, DFAIT asserted that the term "non-computerized" in subsection 7(2) of the Regulations was intended to encompass any record other than those referred to in subsection 4(3) of the Act, which provides:

" ... any record requested under this Act that does not exist but can, ... , be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution."

According to DFAIT this " ... contextual analysis more accurately reflects the intent of the enactors of the Regulations and of Parliament that search and preparation fees not be chargeable for only one type of record, i.e. those that did not exist at the time of the request but that could be produced using computers ."

DFAIT explained that preparation fees were not being assessed for the time spent applying exemptions, but rather only for preparation activities directly related to the time spend making documents available for disclosure to the requesters.

DFAIT also stated that it would " ... continue to assess and charge preparation fees when processing voluminous files" which DFAIT defmed as any file involving more than 500 pages that require severance. DFAIT pointed out that a number of other federal institutions charge preparation fees for requests involving 200 or more responSive pages.

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DFAIT indicated that it would not waive the fees assessed in response to your request because DFAIT was not deemed to have refused access pursuant to subsection 10(3) of the Act and the responsive records were voluminous.

Finally, DFAIT indicated that its position with respect to the application of search and preparation fees and its interpretation of "non-computerized" was shared by other government institutions and suggested that the fmdings of our investigation might have a systemic impact.

As a result, during the course of this investigation, I afforded both the President of the Treasury Board and the Minister of Justice, both of whom are designated Ministers for specified purposes under the Act, an opportunity to make representations concerning the interpretation and application of the Regulations.

Neither the President of the Treasury Board nor the Minister of Justice offered substantive representations with regard to the interpretation and application of the current Regulations. However, the President of the Treasury Board pointed out that the Regulations have not been substantially amended since 1983 despite the advent of modern technologies and changes to the way government institutions create and manage information.

Findings and Recommendations

Having reviewed DFAIT's representations, as well as other evidence before me, I am satisfied that DFAIT was not levying preparation fees for the time taken to analyze or apply exemption provisions. However, for reasons outlined below, I have concluded that the other two aspects of your complaint are well-founded.

First, I do not agree with DFAIT's interpretation of the term "non-computerized" record. In my view, the term "non-computerized" record in subsection 7(2) of the Regulations must be interpreted to mean records which do not exist in electronic format. Records which are created or maintained in electronic format are, in my view "computerized".

I am mindful that this conclusion differs from that reported in the Information Commissioner's 2006-2007 Annual Report which relies on paragraph 21 of the decision in Blank v Canada (Minister of Environment), [2000] F.C.J. No. 1620. In my view, the issue raised in your complaint was not squarely before the Court in the Blank decision.

My finding on this issue is consistent with modern principles of statutory interpretation which require that words be given their ordinary meaning. It is also supported by the French version of subsection 7(2) of the Regulations which makes the application of fees contingent on the fact that: " ... Ie document de man de ... n'est pas informatise". Based on the evidence gathered, and the

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representations received during my investigation, this common-sense interpretation of the term "non-computerized", which is consistent with the purpose and intent of the Act, must be preferred.

It may be that the wording of section 7 of the Regulations has been overtaken by the evolution of technology. However, in my view, the existing Regulations do not give the head of a government institution the discretion to assess and require that search and preparation fees for the processing of electronic documents.

Second, I find that the practice of automatically levying fees in all cases involving more than 500 pages of responsive records is inconsistent with the proper exercise of discretion given to the head of the institution under the Act.

As you know subsection 11(2) of the Act permits, but does not require, the head of a government institution to charge search and preparation fees calculated in accordance with the Regulations. Subsection 11 (2) of the Act provides that "[t]he head of a government institution ... may require ... payment of an amount, calculated in the manner prescribed by regulation, for every hour in excess of five hours that is reasonably required to search for the record or prepare any part of it for disclosure , and may require that the payment be made before access to the request is given." [Emphasis added]

In the present instance, I have concluded that DFAIT charged fees based on an arbitrary defmition of "voluminous" records, without considering other factors relevant to the exercise of its discretion. In my view, a practice of levying fees based on the volume of records without regard to other relevant factors is not a proper exercise of the discretion granted to the head of the institution under subsection 11(2) of the Act and may dissuade requesters from requesting information.

While the volume of records may be one factor to consider when determining whether to charge fees, other relevant factors include:

a) the particular circumstances raised by the requester; b) the public interest in disclosure; c) the length of any time extensions claimed for the purpose of responding to

the request; d) whether the government institution is in deemed refusal.

In my view, fees must not constitute a barrier to access. A consideration of all relevant factors will ensure that the exercise of discretion by the head of the institution is consistent with the intent and purpose of the Act which is to provide a right of access to government information.

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On November 29, 2011, I informed the Minister ofDFAIT, pursuant to subsection 37( 1) of the Act that I found your complaint concerning DFAIT's assessment of preparation fees for electronic records and its practice of charging fees for more than 500 pages to be well-founded. I recommended that the Minister direct his officials to:

cease charging fees for search and preparation time of electronic records; and

exercise discretion to levy search and preparation fees having regard to relevant considerations that include duty to assist obligations and the spirit of the Act.

I asked the Minister to respond to my recommendations by December 12, 2011. At DFAIT's request, I agreed to provide an extension of time pursuant to which the Minister would respond by January 20th. This date was subsequently extended to January 31,2012. On February 3 , 2012, I received the Minister's response.

In his response, the Minister acknowledged that the fee schedule in the Regulations has been overtaken by the evolution of technology and is in need of modernization. Reference was made to the President of the Treasury Board's recent suggestion that " ... it may now be timely to review the Regulations given that years have passed since the fee schedule came into force, which represents a period of significant transformation with the advent of modern technologies and in the way government institutions create and manage information". The Minister also referred to the Minister of Justice's statement that Department of Justice officials will assist Treasury Board in the review and modernization of the access to information fee regime.

That said, the Minister maintained DFAIT's position that the search and preparation fees charged in this instance were in accordance with the current Regulations. According to the Minister, " ... given a contextual analysis that reflects the intent of Parliament at the time of enacting the legislation, search and preparation fees should be chargeable for the records in question, which would fall under the application of subsection 11(2) of the Act and would be considered a non-computerized record." Thus, the Minister concluded that " .. . until such time as the fee regime is modernized, DFAIT believes that the correct interpretation of the Regulations authorizes its current practice to assess and charge search and preparation fees when processing voluminous files [ ... ]."

The Minister also maintained that DFAIT properly exercised its discretion when administering search and preparation fees. In this regard, the Minister stated that: "[ ... ] DFAIT had exercised discretion in accordance with legal and policy requirements when administering search and preparation fees and has, over the

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years, adjusted its fee estimate formulas to reflect the current electronic environment in order to ensure that applicants are not overcharged.»

I have concluded that the Minister has refused to agree with the fmdings of my investigation and does not intend to implement my recommendations. I am therefore recording your complaint as well-founded, not resolved, with recommendations made to the head of the institution.

rrusslOner

c.c. DFAIT ATIP Coordinator