Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 155-1997
March 18, 1997
INQUIRY RE: A decision of the Ministry of Aboriginal Affairs to deny, in
part, a request for a fee waiver from an applicant seeking records related to
Clayoquot Sound
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 23,
1997 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request for review of a
decision of the Ministry of Aboriginal Affairs (the Ministry) to deny a request
from Professor Warren Magnusson of the Department of Political Science,
University of Victoria (the applicant) for a full fee waiver in the public
interest.
2. Documentation of the inquiry process
On August 7, 1996 the applicant requested the Ministry of Aboriginal Affairs
to waive fees on his request for certain records related to Clayoquot Sound.
On August 15, 1996 the Ministry responded to the applicant by waiving fifty
percent of the fee.
On September 18, 1996 the applicant wrote to my Office to request a review of
the decision by the Ministry to deny his request for a full fee waiver. The
ninety-day period for resolving the issue ended on December 23, 1996. With the
agreement of the parties, this was extended to January 23, 1997.
3. Issue under review at the inquiry
The issue in this case is whether the applicant, representing the University
of Victoria, should be excused from paying all or part of the fees requested by
the Ministry under section 75(5)(b) of the Act, which reads as follows:
Fees
75(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,
The Ministry estimates that 17 hours of staff time will be required for the
task of preparing the records for disclosure, which includes the time required
to remove staples, copy pages for severing, and put the files back together so
that the requested files can be made available for viewing. It has also
estimated 7 hours of staff time as necessary to supervise the viewing of the
records. Thus 24 hours of staff time are estimated for a total fee of $720.00.
Photocopying costs are not included in this estimate, since the applicant and
the Ministry agreed that the applicant would request copies of specific records
after he had viewed them.
4. The burden of proof
The Act provides no specific guidance on the burden of proof to be applied in
a request for a waiver of fees. However, I note that fees may be assessed by a
Ministry in accordance with the Act and its regulations. To be excused from
paying a fee under the Act is to receive a discretionary financial benefit;
conversely, the province foregoes revenue to which it would otherwise be
entitled under the Act. Thus it appears logical that the party seeking the
benefit should prove its entitlement on the basis of the criteria specified in
the Act. This places the burden of proof on the applicant in this inquiry.
(See Order No. 90-1996, March 3, 1996, p. 3)
5. The applicant's case
The applicant points out that the "underlying issue in this case is access to
information for scholarly purposes .... [I]t is one of the implicit purposes
of the Freedom of Information and Privacy Act to facilitate legitimate
scholarly research." He emphasizes that scholars "are involved in a non-profit
activity, and normally cannot expect any `return,' in a financial sense, for
access to fuller and more accurate information .... Scholarly research and
scholarly publications are - almost by definition - `in the public interest,'
because they are intended for the public benefit. Their purpose is to advance
knowledge, not to secure commercial or partisan advantage." The applicant's
access requests are being made on behalf of the academic community in
general.
The applicant emphasizes that he is "a well-established and reputable scholar"
at a public university in this province. The main purpose of his several
access requests (only one of which is at issue in this inquiry) is "to
facilitate development of a public archive of materials that would be useful
not only to scholars, but also to ordinary citizens in and out of the Clayoquot
Region." In his view and that of other academics, the land use disputes in and
around the Sound are of great public significance for the present and the
foreseeable future. Hence the need for a public research facility of the type
that he and his colleagues are designing and promoting:
The purpose of the prospective archive is to make all relevant materials
about this matter of public interest available in a timely fashion and to
ensure that these materials [are] organized and catalogued in a fashion that
makes public use feasible. If, in these circumstances, scholars cannot expect
a waiver of fees from the agencies concerned, it is difficult to understand
when fee waivers would ever be granted to facilitate scholarly research ....
Public access to information is essential for good government, and access by
disinterested scholars is particularly important for ensuring that the
quality of information available to the public is as high as possible.
6. The Ministry's case
The Ministry submits that the issue in this inquiry is whether it has complied
with section 75(5)(b) of the Act with respect to the proper exercise of its
discretion in declining to grant a total fee waiver to the applicant.
(Submission of the Ministry, paragraph 3.01) Thus, in its view, the issue is
not access to information for scholarly purposes but the appropriateness of the
exercise of its discretion. (Submission of the Ministry, paragraph 5.01)
The Ministry further submits that there are two steps in making a
determination under section 75(5)(b): 1) deciding whether any of the requested
records relate to a matter of public interest; and 2) whether or not to waive
all or part of the fee if the answer to the first question is yes. (Submission
of the Ministry, paragraph 5.02) The Ministry states:
The head of a public body is clearly not required to excuse all or part
of a fee. Therefore, even if an applicant cannot afford to pay an estimated
fee or a record relates to a matter of public interest, the head of a public
body can still exercise his or her discretion to refuse to waive part or all of
the fee. (Submission of the Ministry, paragraph 5.03)
The Ministry further interprets my previous Orders to mean that I will not
interfere with the discretion of the head of a public body to deny a fee waiver
so long as the head has exercised his or her discretion in good faith.
The Ministry concludes that "there is no reason to interfere with the Public
Body's decision not to waive all of the fees in this matter." (Submission of
the Ministry, paragraph 5.09; Affidavit of Gail Leatherdale, Exhibit D)
7. Discussion
I wish to state for the record that I remain a professor of history and law at
the University of Western Ontario.
I accept the argument of the Ministry that the crux of this inquiry is its
exercise of discretion to grant only a partial fee waiver. However, evaluating
the appropriateness of such a decision is an appropriate activity for me to
undertake. I have said in previous Orders that the public body has the
authority to determine what, in the head's opinion, is in the public interest
under section 75(5)(b), subject to my oversight of any alleged failure to act
in a reasoned manner on the issue. I have the authority to monitor suspected
abuses of this section, particularly under section 42(2)(c). (Order No. 55-1995,
September 20, 1995, pp. 7-9) My role is to ensure that the public
body has exercised its discretion under section 75(5) in an appropriate manner.
(Order No. 98-1996, April 19, 1996, p. 5)
Where I have been satisfied that the discretion has been exercised properly
and in good faith, I have given the public body some leeway in its judgment
about public interest, and not interfered with its exercise of discretion. I
have also deferred to the head's judgment on public interest where the imposed
fee is relatively modest compared to the public body's estimated total costs.
(Order No. 90-1996, March 8, 1996, pp. 11, 12)
The discretion of the head of the public body to grant a fee waiver is
permissive and not mandatory. (Order No. 90-1996) Thus I agree with the
Ministry that there are two steps involved in properly exercising discretion
under section 75(5)(b). The first is for the head of the public body to form
an opinion about whether all or part of the requested records relate to a
matter of public interest. If they do, then the head must decide whether the
applicant should be excused from paying all or part of a fee.
However, I disagree with the Ministry's narrow interpretation of the nature of
the head's permissive discretion. If the head decides that the records do
relate to a matter of public interest, he or she must be guided by proper
considerations in deciding whether or not to grant a fee waiver. My previous
Orders do not support the Ministry's argument that only an absence of good
faith will justify an interference with the discretion of the head of the
public body. While I endeavour to defer to the judgment of a public body, I am
authorized under section 58(3)(c) of the Act to excuse or reduce a fee. I may
do so in a number of instances, in addition to an absence of good faith, such
as where the head has taken into account irrelevant or improper considerations
or acted with a purpose contrary to the Act.
The actual exercise of a public body's discretion
In this case, the Ministry did not apply the two-step process described in its
submission. In its reasons to the applicant, the head combined the issue of
the public interest with the discretion to waive fees. It appears that the
head was of the opinion that at least some of the records related to a matter
of public interest, and she waived fifty percent of the fees on this basis.
The two-step process should be applied as follows:
1. The head must consider the records requested and decide whether, in his or
her opinion, they relate to a matter of the public interest. The focus should
be on the nature of the information. To give some guidance to public bodies, I
suggest that the following kinds of factors should be considered:
2. If the head decides that the records do relate to a matter of public
interest, then he or she 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 his or her request. Factors
that should be considered would include:
If the applicant's primary purpose is to serve a private interest, then the
head may be justified in refusing to waive fees, even where he or she is of the
opinion that the records do relate to a matter of public interest.
The factors described above are not intended to be exhaustive. I have relied
to some extent on established criteria in Ontario, as set forth in the leading
Ontario case on fee waivers: Information and Privacy Commissioner/Ontario,
Order P-474, Ontario Hydro (Irwin Glasberg, Assistant Commissioner, June 10,
1993, pp. 1-3), taking into account the differences in the Ontario legislation.
I understand that B.C. Information Management Services has been developing
criteria for waiving fees in the public interest. I encourage it to continue
this process.
The Ministry's reasons for its decision
This process of evaluating the appropriateness of a fee requires detailed
examination of the reasons given to the applicant by the Ministry in order to
evaluate whether the Ministry did indeed make "a conscious and reflective
decision" in the matter. (Submission of the Ministry, paragraph 5.09) The
main evidence for this purpose is the Ministry's letter to the applicant, dated
August 15, 1996, which I will now proceed to analyze in detail. (Submission of
the Ministry, paragraph 5.09) The applicant himself produced a detailed
refutation of the Ministry's position in this matter in his initial request to
my Office for a review, dated September 18, 1996.
1. The applicant stated that he would use the requested material for a
projected Clayoquot Archive Project, a projected book, a workshop, and an
undergraduate course essentially on "The Politics of Clayoquot Sound." The
Ministry accepted that "some portions" of the Archive are in the public
interest (making records more available to residents of Victoria and Tofino and
providing an index to the records on the Internet, including a World Wide Web
Site), but it concluded that the rest of the projected activities "while still
of interest to the public will mainly benefit the individuals and organization
responsible for the events. In addition, these are revenue generating
activities that we feel are subject to fees." The latter comments are relevant
to the second step of the process, not to the determination of public interest
in the records.
The Ministry's judgment of the applicant's research proposal as a whole
appears to indicate a misunderstanding of the nature, character, and funding of
academic research activities in this province. As the applicant has suggested,
the notion that such activities are "revenue generating" is risible in an
academic setting, where fees for participants are normally set at a level to at
best recoup the expenses of particular activities such as a workshop. The
revenues from writing and publishing a scholarly book in Canada are minimal.
In addition, there are no revenues generated from preparing and teaching
courses. Essentially, the overhead costs for all of these projected research
and teaching activities are such as to render the Ministry's argument about
revenue generation untenable. As the applicant specifically stated, "it is
absurd to suppose that improved access to information will have any
revenue-generating effects in relation to these projects." They are non-profit
ventures. It is clear, on the evidence in this case, that the applicant's
primary purpose in making his request is not to serve a private interest, but
to respond to a public one.
2. The Ministry's second reason for refusing a full fee waiver is that "[a]
great deal of information about the issue of the land use decisions in
Clayoquot Sound is already public ..... The information in the records
requested will not raise issues which will increase public concern." Moreover,
the Ministry asserts that the media have well publicized the issues surrounding
Clayoquot and that public interest has waned, since the parties involved have
resolved problems.
Again, I am of the view that the Ministry has misinterpreted and misapplied
the concept of public interest in this respect. I do not accept the view that
anything to do with Clayoquot Sound is not a matter of considerable public
interest in the broadest sense of the term, which includes the kind of academic
analysis, research, and teaching that the applicant is proposing to undertake.
It is self-evident from the media, even in 1997, that issues remain to be
settled in this controversial domain that much affect the public interest, such
as forest renewal and forestry jobs. Moreover, the kind of public attention to
these issues in this decade has been primarily in the popular press and not the
kind of careful social scientific analysis, after the immediate passage of
events, that is ultimately required for public policy debates in this province.
As the applicant argued:
.... the records are still of interest to contemporary political analysts and
historians. Part of the point of freedom of information is that it makes it
easier for scholars to make sense of things that have happened recently and to
publish their findings in a timely way ....
It is certainly in the public interest not to repeat the mistakes of the past.
But, we are liable to repeat those mistakes if we--the public--have no
access to detailed information about what was done and why.
In terms of establishing the extent of public interest in the proposed Archive
Project, which is at the heart of the applicant's proposal, I have examined
letters submitted by the applicant from, among others, the Clayoquot Sound
Central Region Board; the District of Tofino; The Friends of Clayoquot Sound;
the Pacific Rim National Park Reserve, Parks Canada; Professor R. Michael
M'Gonigle, Eco-Research Chair of Environmental Law and Policy, University of
Victoria; and the President of the Canadian Anthropological Society (also, it
should be noted, a professor at the University of Victoria). I have also
benefited from a reading of a seven-page project description for the Clayoquot
Archive Project. (Affidavit of Gail Leatherdale, Exhibit C)
3. The third reason given by the Ministry is that the request is broad and
general, encompassing a wide range and large volume of records. The fee
estimate of $720.00, while reasonably high, does not in my view reflect a
request so broad as to exclude it from the public interest. This is not a
proper consideration in the circumstances of this request.
4. The fourth reason concerns the Ministry's allegation that the "portion of
the public that will make use of this information is limited to researchers and
a small portion of people in the Tofino and Victoria areas." To quote the
applicant's exact reply:
I suppose the same would be true of the next sighting of Elvis. The fact
remains that there are many people who have already indicated that they would
value the kind of archive we are trying to develop. I might note that these
people include important representatives of the First Nations.
I view the academic research community as broadly representative of the
interests of the public in their teaching, research, and communication roles.
Moreover, as the applicant points out, researchers and students around the
world will be able to use the Internet to learn about the Clayoquot Archive
project and to then make plans to acquire their own copies of relevant
materials for appropriate scholarly purposes. Such activities clearly involve
records in the public interest in the sense in which that term is used in the
Act.
The Ministry also states that the general public is "well acquainted" with the
issues of Clayoquot Sound so that release of these records will be of "lesser
interest to the broad majority of the public." This statement does not reflect
the nature of scholarship in any discipline. Scholarship is by definition a
minority interest, but that does not mean that it is not in the public
interest. The province funds colleges and universities as centres of teaching,
research, and publication because it is in the public interest to do so.
5. The fifth reason advanced by the Ministry is as follows: "Although the
public may be interested in how the government conducted its operations in the
Clayoquot Sound area, we feel this is more an argument for the information
being of interest to the public, rather than in the public interest." The
applicant responded:
As a political scientist, I find this argument a bit startling. It is always
in the public interest for the public to know how the government is conducting
its operations. Unless the public has this information, it cannot make
informed judgments, and so it cannot hold governments to account. What is at
stake is not just a matter of curiosity. The government's management of the
Clayoquot Sound dispute has been a major issue in provincial politics for a
number of years. The public has a right to know how and why the government
made its decisions, and to form political judgments on the basis of that
information. The Clayoquot Archive Project will serve these purposes.
I have already indicated my view that research and teaching of the sort
contemplated by the applicant clearly concern records that relate "to a matter
of public interest, including the environment," to reflect the direct language
of the Act.
It is my view that in this case, the Ministry failed to properly apply its own
suggested two-step process for determining public interest and exercising the
discretion to waive fees under section 75(5)(b) of the Act. While I do not
question its good faith, the Ministry appears to have acted with a purpose
contrary to the Act, given the evidence provided by the applicant. The head
failed to exercise her discretion properly under section 75(5) by
misinterpreting the applicant's primary reasons for making the request and by
taking improper considerations into account in deciding whether the records
relate to a matter of public interest.
During debates in the Legislature on June 23, 1992, then Attorney General
Colin Gabelmann responded as follows to an Opposition question about the
meaning of "public interest" in the context of a request for a fee waiver:
The government and its agencies will develop policy and procedures in respect
of this issue. If, in the commissioner's view, these policies are not
appropriate, the commissioner will be able to provide advice on that and in the
final analysis give direction. So it remains to be seen how this develops;
there's not much more I can say than that. (British Columbia Debates,
June 23, 1992, p. 2956)
In my reading of this statement, the Attorney General had a clear expectation
that I might, and could, play a critical role on this matter, as I am doing in
this Order. (Information and Privacy Commissoner/Ontario, Order P-474, June
10, 1993)
Section 42(2)(c): The appropriateness of a fee
The Ministry has reviewed several of my earlier decisions which set forth a
standard of deference on my part to the head of a public body with respect to a
fee waiver, since he or she is in possession of information and experience on
the matter. (Order No. 79-1996, p. 4) I have already indicated in the
preceding analysis that that is not the case in the present inquiry. I have
also taken notice in other Orders of the limited circumstances (at least as set
out by one party) in which a fee required under the Act may be inappropriate;
these included bad faith or extraneous considerations. (Order No. 55-1995, p.
8) (Submission of the Ministry, paragraphs 5.07, 5.08) However, none of these
previous decisions involved requests for the kind of information sought in this
case, and none involved requests by legitimate researchers whose primary
purpose is to disseminate information in a way that could reasonably be
expected to benefit the public interest.
I do not hold the view that any scholarly request for access to government
records necessitates a fee waiver by a public body. I am also aware of the
possibility of academic applicants securing outside funding in connection with
such requests for access to records from public bodies. As in the
circumstances of the present inquiry, an applicant must make a reasonable and
reasoned effort to demonstrate why a specific request merits a fee waiver for
reasons such as the fact that, to cite the Act itself, "the record relates to a
matter of public interest, including the environment or public health or
safety." In this inquiry, I find that the applicant has met his burden of
proof on this point. Establishing an archive is a particularly useful way to
serve the public interest, since such a variety of communities, from First
Nations, to local communities, and forest companies, can use it.
I would find the issue of determining the appropriateness of a
fee waiver much more worthy of consideration if I had encountered any evidence
to date that academics have been abusing their access rights under the Act for
research and statistical purposes. It is also hard to imagine a more timely
topic for social science analysis than the politics of land use in Clayoquot
Sound. It is possible that with a proper research agreement, at least some of
the Ministry's costs for preparation of records, etc. could have been passed on
to the applicant, who could have done most of the work for which fees have been
charged.
I recognize that the criteria set out above place a substantial burden on an
applicant for a fee waiver in the public interest. I do not expect such a fee
waiver to be granted very often. For example, this is the first time in more
than three years that I have approved the waiver of a fee under
section 75(5)(b) of the Act.
8.
Order
I find that the head of the Ministry of Aboriginal Affairs failed to exercise
her discretion properly under section 75(5) of the Act. Under
section 58(3)(c), I excuse the fee charged by the Ministry.
March 18, 1997
David H. Flaherty
Commissioner