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When Informal Access is More Expensive than Formal

Background

An individual asked Library and Archives Canada (the Archives) for access to the World War II records of two servicemen killed in action. The Archives denied the request on the basis that the records were available through the Archives’ Research Services Division (subject to payment of a photocopying charge). In the Archives’ view, section 68 of the Act excludes from the right of access records which are otherwise available to the public.

The requester was not satisfied with the Archives’ position. In his view, he should have the right to obtain the records under the Act, within the 30-day response period, for a fee of $5, a photocopy charge of $0.20 per page, and only pay for the pages the requester is interested in. He objected to going through the Research Services Division, where there is no response deadline, the photocopy charges are $0.40 per page for regular service and $0.80 per page for rush service, and where the requester must pay for all records in the file.

Legal Issue

May the Archives deny, under section 68 of the Act, requests for access to records which have been moved to its Research Services Division, for disclosure upon payment of a fee, set by Order-in-Council, which is higher than the fee permitted by the Act’s Regulations?

The investigation determined that the Archives’ intentions were honourable - it wished to restrict the formal access process to information that requires review against the Act’s exemptions before disclosure. Any other records that have been previously reviewed and found not subject to any restrictions on disclosure (such as the "Killed in Action" files) would be provided to the public informally, through the Archives’ normal services for reference and consultation, at set fees for copies.

The Commissioner had to be guided by the words of section 68, which provide that the Act does not apply to "published material or material available for purchase by the public".

The Commissioner did not consider that the "Killed in Action" files had been "published" when transferred to the Archives’ Research Services Division. As well, he did not consider that the photocopy charges met the test of "available for purchase by the public". In coming to this position, the Commissioner took into account the purpose section of the Act (section 2), which specifically states that no portion of the Act (including section 68) is intended to limit "in any way" access to the type of information that is normally available to the general public. He also took into account that the fee regulations under the Act have set out the permitted charge for photocopies; he considered that it would be inconsistent with this scheme to allow government institutions to set a high photocopy charge for classes of records and, thereby, remove those classes of records from the coverage of the Act.

The Commissioner applauded the Archives’ efforts to make access as informal and routine as possible, yet, he concluded that the access requester retained the choice to have his access request processed formally under the Act.

While the Archives respectfully disagreed with the Commissioner’s legal interpretation, it provided a copy of the requested records to the requester, free of charge. On that basis, the Commissioner recorded the matter as resolved.

Lessons Learned

The Commissioner encourages government institutions to explore ways to disclose records informally, outside the Access to Information Act. However, institutions are cautioned against doing so in ways which make access more expensive, or reduce the level of service which would have been available, if the request had been formally processed under the Act.

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