• Where the records were in the custody of the institution's lawyers and not on the institution's premises, the institution can charge the requester the invoiced costs provided by the lawyers to produce the records. (Order #M-1090)

ss.(3)

• Fee estimates should be reasonable and, for complex requests, should be based on a representative sampling of records, or on advice of experienced employees knowledgeable about the records. (Orders #P-81, P-86, P-132)

• Fee estimates should contain a reference to the fee waiver provisions of ss.57(4) FIPPA/ss.45(4)MFIPPA. (Orders #P-81, P-86)

• Issuance of a fee estimate suspends the 30-day count until the deposit is received or fees are waived. (Orders #P-81, P-86)

• Where responsive records have been identified for an appeal, the institution may be ordered to make a final access decision on the records determined to be responsive in the Order, without recourse to a time extension. (Order #M-514)

• In this case, the institution provided the Commission with an affidavit as the basis for the fee estimate to confirm how the search was done. (Order #M-163)

ss.(4)

General

• The party seeking a fee waiver bears the burden of establishing his or her case. By simply providing present and projected earnings, an inmate in a place of detention does not discharge the burden of proof. (Orders #P-4, P-10, P-31, P-95, P-111, P-105, P-117, P-264, P-265, P-366, P-425, P-463, M-66, P-530, M-218, P-591, M-220, M-228, M-229, P-608, P-698, M-360, P-741)

• When the appellant did not provide representations regarding the justification for a fee waiver, it was found that the granting of a waiver would shift an unreasonable burden of the cost of access from the appellant to the institution.(Orders #M-509, P-1142)

• The section is an exhaustive list of the matters to be considered in determining if a waiver is appropriate. The "public interest" is not one of the factors to be considered. (Orders #P-5, P-6, P-10, P-31, P-43, P-55, P-81, P-111, P-700)

• The status of a requester as a Member of the Legislative Assembly is not a factor which must be considered in determining whether it is fair and equitable to waive a fee respecting an access request. The Act did not recognize this special status as a criteria for the waiver of fees. (Order #P-608)

• The requester must raise the matter of a fee waiver. However, a request for a waiver need not be explicit. (Orders #P-4, P-5, P-10, P-30)

• A fee waiver was granted in respect of a request for access to all records relating to a County's waste management master plan and a landfill site search. The Commission was satisfied that the request involved a matter of public interest and related to a public health and safety issue. It was also determined that the request was fair and equitable in that the requester had attempted to limit the request by restricting the time period and by offering to view the records at the consultant's office. (Order #M-408)

• Municipal and regional police services are law enforcement agencies of the Ontario Government because the Police Services Act (PSA) is the governing legislation regarding police services in Otario and the PSA is administered by the Solicitor General of Ontario. (Order #M-1004).

"In the Head's Opinion"

• The phrase "in the head's opinion" does not mean that the Commissioner does not have the power to review an institution's decision not to waive a fee. The Commission may confirm or overturn the decision based on whether it is correct given the criteria in subsection (4) and the provisions of the Act dealing with the Commission's powers. (Orders #P-474, M-166, P-526, P-530, P-566, M-177, P-591, M-220, M-228, M-229, P-608, M-252, P-741, P-754, M-408, M-411, M-417, M-429)

"Fair and Equitable"

• To determine whether a fee estimate is fair and equitable the following factors are relevant: 1. the manner in which the institution attempted to respond to the appellant's request; 2. whether the institution worked with the appellant to narrow and/or clarify the request; 3. whether the institution provided any documentation to the appellant free of charge; 4. whether the appellant worked constructively with the institution to narrow the scope of the request; 5. whether the request involves a large number of records; 6. whether or not the appellant has advanced a compromise solution which would reduce costs, and 7. whether the waiver of the fee would shift an unreasonable burden of the cost from the appellant to the institution, such that there would be significant interference with the operations of the institution. (Orders #P-741, M-408, M-417)

• The fee estimate established by an institution for access to the expense accounts of certain school board officials was not waived in this case. The Commission decided that it would not be "fair and equitable" to waive the fee based on the following considerations: 1. the institution responded in good faith to the requester; 2. the request involves a very large volume of records; 3. the requester was not prepared to narrow the request but insisted on receiving raw data which required extensive searches and time consuming severance procedures; 4. the requester had not advanced a compromise solution to reduce costs; 5. the actual cost of producing the record exceeds the fee estimate itself and the waiving of the fee would shift an unreasonable burden of the cost of access from the appellant to the Board, resulting in significant interference with the operations of the board. (Orders #M-166, M-171, P-698, M-695)

• The Commission determined that it was not "fair and equitable" to waive a fee of $690 plus any photocopying costs regarding an access request for expense account records as well as salary and other payments made to two trustees. Even though the payment could result in financial hardship to the requester, the Commission found that it would shift an unreasonable burden of the cost of processing the appeal from the requester to the institution. (Order #M-417, M-753)

• In considering whether a fee waiver would be fair and equitable, the Commission noted in this case that the original request was massive both in terms of the subject areas addressed and the time periods over which information was sought. The requester only narrowed the request minimally and did not, in the Commission's view, work constructively with the institution to meaningfully narrow the scope of the request. In the result, a fee waiver was not authorized. (Orders #M-220, P-698)

• The requirement for an institution to decide whether it would be "fair and equitable" to waive request fees applies on an individual request basis. An internal "policy" against granting fee waivers does not fulfill this requirement.(Order #M-695)

ss.(4)(b)

• In requesting a fee waiver, the requester bears the burden of providing the institution with adequate information concerning his or her financial position, including assets, income, expenses. Where the requester simply states that he or she is on welfare assistance and that he or she has child support payments to make, this is not adequate. The institution and the Commission must have detailed information concerning assets and expenses in support of a fee waiver. (Orders #P-4, P-10, P-105, P-111, P-184, P-185, P-425, P-463, P-566, M-252)

• The appellant provided evidence that he has a modest income and that he is the sole supporter of two dependents. As a result, the Commission agreed that an expenditure of about $1,500 to obtain the records regarding an aboriginal land claim would cause financial hardship to the appellant. However, the Commission considered that the institution had provided the appellant with 1,300 pages of general records free of charge when it could have charged a fee. As well, officials of the institution spent many hours talking to the appellant about narrowing the request to reduce the fees. In the result, the Commission determined that the institution's decision not to waive the fee was based on fair and equitable grounds. The institution's decision was upheld. (Order #P-463)

• In this case, the Commission decided that a payment of $76.50 would not cause financial hardship to the requester. The Commission considered that the institution had already reduced the fee in consideration of the requester's financial position, that the actual cost of processing the records exceeded the initial fee estimate and that the institution must balance the obligation to provide access to information with the responsibility to manage public funds wisely. (Order #M-177)

• A rural citizens' group involved in waste management and disposal issues sought a waiver of a fee of $437.20 regarding records about a landfill site. The Commission ruled that the waiver should not be granted. It found that in this case there was not sufficient evidence of financial hardship to warrant shifting the financial burden from the requester to the government and ultimately to the public. The financial resources available to the requester at the time of the access request was a significant factor to consider. In this case the funds in the bank were sufficient to cover the costs of processing the request. (Order #P-526)

• In this case, the financial statement provided by the requester in support of a fee waiver was held by the Commission to be inadequate. It did not contain sufficient information/evidence to support a claim for a fee waiver under this section. As a result, the institution's decision not to waive the fee was upheld. (Order #P-530)

• The financial resources of a community group that sought certain environmental information were not relevant to this analysis; rather, the financial resources of the individuals comprising the group were required to make the determination under this provision. (Order #P-698)

• Non-profit organizations do not automatically qualify for a fee waiver based on financial hardship. (Order #P-111)

ss.(4)(c)

• The following factors are relevant to the determination as to whether this provision is satisfied: 1. whether the subject matter of the record is a matter of public rather than private interest; 2. whether the subject matter of the record relates directly to a public health or safety issue; 3. whether the dissemination of the record would yield a public benefit by a) disclosing a public health or safety concern or b) contributing meaningfully to the development of understanding of an important public health or safety issue; 4. the probability that the requester will disseminate the contents of the record. In this case, the appellant was seeking records that were considered for inclusion in the rehabilitation plans for a nuclear generating plant, which were subsequently rejected. The Commission found that the institution should have waived the fee under this provision. It found that the safety of the nuclear generating facilities was a matter of considerable importance to the general public and that the matters dealt directly with public health and safety. The Commission found that the dissemination of the records would be to the public at large and that this would contribute to the development of public understanding regarding the maintenance of aging nuclear reactors. In deciding to interfere with the head's decision, the Commission considered the fact that the appellant narrowed the request with the result that the original fee estimate was reduced by 90%. (Orders #P-474, P-463, P-608, M-252, P-698, M-356, M-372, P-760, M-403, M-404, M-408, M-411). The Commission introduced another factor, namely the amount of information which is currently available through a public registry, free of charge. (Order #P-1183)

• This provision is discretionary. A waiver is not required if the record contains some information relating to health or safety matters. (Orders #P-2, P-473)

• This provision requires that there be a public benefit resulting from the disclosure of the record in order for the waiver provision to apply. (Order #M-66)

• Statistical records relating to complaints received by the Psychiatric Patient Advocate Office from current or former patients of Queen Street Mental Health Centre that allege physical or sexual abuse by staff were disclosed without fee in this case. The institution had granted access to certain records and requested the payment of $147 for the remainder of the records. The patients' council which requested the information stated that it intended to publish the information in a newsletter. The Commission held that the care and safety of vulnerable persons is a public responsibility and of public concern and that the records related directly to public health and safety. (Order #P-754)

• While records related to the number of Workers' Compensation Board claims related to the use of video display terminals were of public interest, the Commission found that insufficient evidence was provided that the dissemination of the records would yield a public benefit. It was noted that the issue was already debated publicly and that a number of studies had been done on the subject. Consequently, the waiver of the fees was denied. (Order #M-403)

• In this case the Commission did not believe that a waiver applied regarding access to records concerning the environmental condition of the site of the new Ministry of Natural Resources offices in Peterborough. The disclosure of the record would not yield a public benefit because it would neither disclose a public health concern not contribute to the development of understanding of an important public health issue. (Order #P-608)

• In a very broad request where the responsive records have not yet been retrieved and their contents cannot be ascertained with any degree of specificity, it is not reasonable to conclude that the dissemination of the records would benefit public health or safety. The mere fact that the responsive records may contain some information in some way relating to health or safety matters is not sufficient to warrant a fee waiver under this provision. (Order #P-425)

• In this case, the Commission was not satisfied that dissemination of information concerning chemical spills would contribute meaningfully to the development of understanding of an important health and safety issue. The requester did not supply any evidence respecting his intention or ability to disseminate the records and the Commission was not satisfied that these particular records would be disseminated to the public. (Order #M-252)

• A fee waiver did not apply to records concerning zoning and planning issues of a asphalt manufacturing plant. (Order #M-1087)

• In ordering search and preparation charges to be waived for records regarding air and water discharges, the Commission noted the institution, was going to compile the water data and produce a summary anyway. The institution has an obligation to keep the public informed about public health and safety issues. The Commission was satisfied that: 1) issues about non-complying air and water discharges are of public interest, relating directly to a public health issue; 2) dissemination of the information would contribute meaningfully to the development of an understanding of the issues relating to air and water discharges; 3) the public has the ability to have input into an important public health issue; 4) the requester, a non-profit organization, would disseminate the contents of the records. Photocopying and shipping charges were not waived. (Order #P-1557)

• Where a requester sought access to school board transportation and school bus policies and accidents, the fee was waived as it was found that disclosure of these records would benefit public safety. (Order #MO-1243)
  
  

s.(5)

• The burden of establishing the reasonableness of the fee estimate rests with the institution. The institution discharges this burden by providing detailed information as to how the fee estimate has been calculated and by producing sufficient evidence to support its claim. (Orders #P-86, P-425, M-103, M-139, M-171, M-301, M-337, M-376, P-741, M-408, M-410, M-411)

• One of the ways that an institution may discharge its onus to establish the reasonableness of the search is to provide an affidavit which outlines the steps taken to calculate the search and preparation time, the charges for same and the photocopying costs that comprise the fee estimate. (Order #M-337)

• The words "appeal" and "review" mean the same thing insofar as they relate to appeals heard by the Commission. (Order #M-819)