ORDER 185

Appeal 890256

Ministry of Health

O R D E R

This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987, as amended (the "Act") which gives a person who has made a request for access to a record under subsection 24(1) a right to appeal any decision of a head under the Act to the Commissioner.

On January 5, 1990, the undersigned was appointed Assistant Commissioner and received a delegation of the power to conduct inquiries and make Orders under the Act.

The facts of this case and the procedures employed in making this Order are as follows:

1. On July 10, 1989, the Ministry of Health ( the "institution") received a letter from the requester seeking the following information:

Drug Quality and Therapeutics Committee meeting minutes for 1989.

2. By letter dated July 26, 1989, the institution's Freedom of Information and Privacy Co_ordinator wrote to the requester as follows:

Please be advised that the estimated fee for the record you have requested is $765.00. Your written acceptance of this fee and a deposit of $191.25 is required before we can proceed with the request... a breakdown of the estimate is attached...when we receive your cheque/money order processing will resume and you will be notified whether or not access will be granted, in whole or in part, to the record(s). If access is refused, your money will be refunded. If the final fee is less than the estimated amount, you will be informed. Please note that under the Act the 30 day timeframe for processing your request is suspended until we hear back from you.

3. The head broke down the fee estimate as follows:

Photocopies, 165 pages @ 20 cents per page..$ 33.00

Record preparation, including severances

122 x 15 minutes _ 30 1/2 hours.............$732.00

TOTAL.................$765.00

4. The requester appealed the head's decision by letter to this office which was received on August 4, 1989. In his letter of appeal, the appellant stated:

After Appeal 0007 and your recent Order, it is ironic that Health has tried another means of denial. I believe that once data is handed out without fees albeit with exemptions, a ministry cannot then reverse the practice, and particularly in light of the history of this type of request. Besides, I asked for a waiver and [the] data does affect public safety. Otherwise I will have no choice but to abandon the requests given excessive fees, primarily there to prepare data for exemptions, a treatment that discourages access.

5. Notice of the appeal was given by this office to the institution and to the appellant.

6. Upon receipt of the letter of appeal and of a copy of the head's decision the Deputy Director of Legal Services/Appeals wrote to the institution. In her letter the Deputy Director noted that an access decision conforming to section 29 of the Act had not appeared in the institution's letter to the appellant dated July 26, 1989. Accordingly, the Deputy Director requested that the institution identify the requested record and make a decision as to access under section 26 of the Act.

7. Upon receipt of the letter of appeal and a copy of the head's decision, the Deputy Director also wrote to the appellant. The Deputy Director requested the appellant to provide the institution with his reasons for believing that the fee waiver provisions of subsection 57(3) applied in the circumstances of this appeal.

8. On September 5, 1989, the institution responded to the appellant as follows:

[The] request[s] for general records involve the minutes of the Drug Quality and Therapeutics Committee meetings. An employee of the institution, in the program area in which these records are stored, counted the number of minutes in question for each request. One set of minutes that was representative of all minutes was chosen and the document was prepared for disclosure under the Act and as per Order #68 of the Information and Privacy Commissioner of Ontario. The employee then calculated the cost of processing these two requests for access according to Ontario Regulation 532/87.

The interim decision in this case... is that access will be granted with severances...

9. On October 23, 1989, the Office of the Information and Privacy Commissioner received from the appellant a copy of his representations to the head with respect to the issue of fee waiver.

10. On December 5, 1989, the Appeals Officer assigned to the case received a copy of the head's decision regarding fee waiver. The head declined to grant a fee waiver and stated:

..the fees estimate...is fair and equitable under the Act and are in accordance with Ontario Regulation 532/87, section 5 which state the amount a head may charge for copying and disclosure of the record.

You do not provide any details as to how and why the fee for the general records would cause financial hardship. While the fees estimates are high, they are accurately based on the information requested.

You have stated that the "data touches on public interest and safety matters" and an attempt will be made to disseminate the information to the public of this safety related issue. You have not indicated exactly how this information will be disseminated and how disclosure of this information will increase public awareness. It is not clear to what "safety related issue" you are

referring or how the waiving of fees, in this case, will "contribute to further opening the records and to improve public interest in freedom of information legislation." It is also not clear how the waiving of costs, in these cases, would improve government record keeping systems.

11. Notice that an inquiry was being conducted was given to the institution and the appellant by letter dated February 13, 1990. Enclosed with the Notice of Inquiry was copy of a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. The Appeals Officer's Report indicates that the parties, in making representations, need not limit themselves to the questions set out in the Report.

12. Representations have been received from the appellant and the institution, and I have considered them in making my Order.

The issues that arise in the context of this appeal are as follows:

A. Whether the amount of the estimated fee was calculated in accordance with the terms of the Act.

B. Whether the head's decision not to waive fees under subsection 57(3) of the Act was in accordance with the terms of the Act.

ISSUE A: Whether the amount of the