Fees for electronic records as per Information Commissioner of Canada v. Attorney General of Canada, 2015 FC 405

Advisory Notice

This notice explains the Office of the Information Commissioner’s (OIC) interpretation of the Federal Court’s decision in Information Commissioner of Canada v. Attorney General of Canada, 2015 FC 405 (the Fees Reference).

Background

On February 27, 2013, the Information Commissioner brought a reference question to the Federal Court pursuant to section 18.3(1) of the Federal Courts Act. The reference was framed as follows:

Are electronic records non-computerized records for the purpose of the search and preparation fees authorized by subsection 11(2) of the Access to Information Act (the Act) and subsection 7(2) of the Access to Information Regulations (the Regulations)?

The Regulations state that institutions can only charge search and preparation fees for “non-computerized” records. At issue in this case was whether electronic records such as emails or Word documents are considered “non-computerized.”

In the reference proceedings, the Commissioner’s position was that the answer to the reference question was “no.” In her view, “non-computerized records” means records which are not stored in or on a computer or in electronic format. In other words, electronically stored records are indeed computerized and therefore not subject to search and preparation fees.

The position of other parties to the proceedings was that the answer was “yes.” The Attorney General argued that a contextual analysis should be applied, which would take into account that most records are now in electronic form and that Word documents or emails “can be produced without the need to program a computer to create the record,” and therefore they are subject to search and preparation fees. Interveners in the proceedings also noted that fees can serve as a deterrent to requesters and can be used to help the financial situation within institutions that may be under budgetary and other constraints when responding to requests.

On March 31, 2015, the Federal Court rendered its decision and agreed with the Commissioner’s interpretation. The Court accepted the ordinary meaning of “non-computerized records” to find that emails, Word documents and other records in electronic format are computerized records and therefore not subject to search and preparation fees under the Regulations.

Impact of the decision

The Federal Court’s decision means that institutions must not charge fees to search for, and prepare, electronic records. Search and preparation fees may only be charged for records which are not stored in or on a computer or in electronic format.

Examples of electronic records include:

  • emails;
  • Word documents;
  • Excel documents;
  • PDF documents;
  • any other record that is stored on a computer’s internal hard drive, external hard drive, DVD or CD, floppy disk, punch card or that is otherwise machine readable; or
  • any other record in electronic format.

Fees charged for searching and preparing electronic records are not permitted under the Act and will result in a well-founded complaint.

During OIC investigations of complaints concerning search and preparation fees, institutions must demonstrate that the records were non-computerized at the time the request was made.

For the purpose of our investigation, the OIC will require documentation regarding the format of the records, where they are stored and the volume of records.

It is the position of the OIC that institutions cannot charge fees for the review and/or preparation of records using redaction software. Fees can, however, be assessed for any manual preparation of records.

Subsection 7(3) of the Regulations

Subsection 7(3) of the Regulations may only be used to charge fees for specific costs related to producing and programming a record from a machine readable record.

Subsection 7(3) cannot be used to justify charging fees for what are, for all intents and purposes, fees for searching and preparing electronic records. Fees cannot be charged to deter requesters or for cost recovery. Such use of subsection 7(3) – or any other provision – is not permitted under the Act and will result in a well-founded complaint.

During OIC investigations of complaints concerning subsection 7(3), institutions must be able to demonstrate that programming was required to produce the record.

Reminder: Fees can be waived or reimbursed

Subsection 11(6) of the Act allows for fees to be waived or reimbursed by the head of an institution (or delegated authority). This provision gives the head of an institution (or properly delegated authority) broad discretion to waive or reimburse fees in any circumstances considered appropriate.