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Is a Fee Estimate of $1.6 Million Too Much?
A journalist made a request to the Royal Canadian Mounted Police (RCMP) for access to some 2.8 million criminal records contained in the computer systems of the Canadian Police Information Center (CPIC). The requester specifically asked that the information be disclosed in depersonalized form (i.e. no links to specific individuals) and that it be disclosed in electronic form.
To comply with the request, the RCMP determined that it would take 15 eight-hour days of computer programming for the Criminal Records Synopsis database and 183 eight-hour days for the Criminal Records History Level Two database. The RCMP took the view that it was entitled to charge fees for this computer time at the rate of $16.50 per minute for a grand total of $1,599,840. Moreover, the RCMP demanded that the full amount of the fee estimate be deposited by the requester before any further work would be done to process the request.
The requester filed a complaint with the Information Commissioner. He pointed out that he had recently made a similar access request for six years of arrest data from the Toronto Police Service. In response, non-personal details of some 480,000 arrests and 800,000 criminal charges were released in electronic format (a single CD-Rom) at a cost of $800. Consequently, the journalist argued that the $1.6 million fee estimate made by the RCMP constituted an unreasonable and unlawful impediment to access. Moreover, he argued that it would be in the public interest to allow members of the media to analyze CPIC criminal records for trends and patterns that may shed light on police practices and outcomes in the criminal justice system.
The RCMP relied upon subsection 7(3) of the Access to Information Regulations to justify its fee estimate. It states:
"7.(1) Subject to subsection 11(6) of the Act, a person who makes a request for access to a record shall pay
(3) Where the record requested pursuant to subsection (1) is produced from a machine readable record, the head of the government institution may, in addition to any other fees, require payment for the cost of production and programming calculated in the following manner:
(a) $16.50 per minute for the cost of the central processor and all locally attached devices; and
(b) $5 per person per quarter hour for time spent on programming a computer."
The legal issue, thus, is whether or not subsection 7(3) of the Access to Information Regulations was properly interpreted and applied by the RCMP.
The RCMP agreed that the estimate of 1,584 hours of computer time might not be entirely accurate, yet it argued that the regulations clearly permitted a charge of $16.50 for every minute of computer time.
The complainant argued that the RCMP’s strict and literal interpretation is no longer appropriate in the decentralized computing environment which prevails now, some 23 years after subsection 7(3) of the regulations was written.
In support of his position, the complainant drew the Information Commissioner’s attention to the following passage from page 60 of the Information Commissioner’s 2002 Special Report to Parliament (a special report containing comments on an internal government Task Force report proposing changes to the Access to Information Act):
"The idea that producing a report from a database is tantamount to programming a computer is outdated. Current technology, available at a modest cost, can easily produce a variety of reports from a single database. As well, charging for central processing time was reasonable when processing capacity was a scarce resource. Mainframe computers were very costly to purchase. Charging for processing time was one way to amortize their cost. The same reasoning does not apply to much less costly personal computers.
Better performance capabilities and lower costs of PC-based networked computing means that the real machine time cost is next to nothing. While a charge of $16.50 for each minute of central processor time may be appropriate for mainframe computing, it can hardly be justified for networked personal computers. The regulations of the Act should be amended to exclude PC-based processing from the central processing fee.
A second pricing issue involves fees to be charged for such new ways of distributing information as CD-Roms and computer printouts. These media are not covered by the current fee schedule. The fee schedule clearly intends to limit the cost to the requester to the cost of compiling and reproducing the information. The same pricing philosophy should be maintained for new media formats."
The Information Commissioner’s investigation confirmed that the deposit demanded by the RCMP was far greater than the actual costs to the RCMP of complying with the request. Despite the large amount of data to be depersonalized and prepared for release on CD-ROM, simply designed and off-the-shelf software was available to accomplish the task using very little CPU processing time. Moreover, processing the request in a modern multi-tasking computing environment, CPU systems did not need to be entirely devoted to responding to the access request. In fact, the real machine-time costs of computing in this case were so low as to be unmeasurable.
In protracted discussions during the investigation, the RCMP recognized that one entire database need not be processed as it consisted entirely of personalized information and, while maintaining its legal position, the RCMP, on December 1, 2005, disclosed the requested records to the requester in electronic format, without charging any fees.
The fee regulations for computer time do not reflect the cost realities in modern computing environments. The regulations should not be interpreted as authorizing the collection of fees which exceed the actual direct costs of the associated computing (in fact, in 2005-06, the actual direct costs of computing time are negligible).