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Federal Court decision in Information Commissioner of Canada v. Attorney General of Canada, 2015 FC 405 (T-367-13)

On February 27, 2013, the Information Commissioner filed an application for a reference with the Federal Court seeking a determination on whether an institution could charge search and preparation fees for electronic documents that were responsive to requests made under the Access to Information Act.

The Information Commissioner took the position that “non-computerized records” (as per the language of the Access to Information Regulations) for which a search and preparation fee could be assessed, means records which are not stored in or on a computer or in electronic format.

On March 31, 2015, the Federal Court rendered its judgment and agreed with the Commissioner’s position. Its view was that “in ordinary parlance, emails, Word documents and other records in electronic format are computerized records” (para. 50) and records that are machine readable are computerized (para. 54).  This means that search and preparation fees cannot be applied to electronic or computerized records.

The Court did not accept the arguments of the Attorney General and of the intervening Crown corporations that, pursuant to a contextual analysis, existing electronic records such as emails, Word documents and the like are non-computerized records.

Link to decision: Information Commissioner of Canada v. Attorney General of Canada