B.C.’s information and privacy commissioner says freedom of information request application fees should be dropped despite a newly released review finding mixed reaction to those charges.
“Although it is too soon to evaluate the long-term impact of the $10 fee on request volumes, some of the findings give cause for concern and there is a clear need to carefully monitor matters going forward,” commissioner Michael McEvoy said on the report’s release Jan. 19.
On Oct. 18, 2021, then-minister of citizens services Lisa Beare unveiled proposals to amend the Freedom of Information and Protection of Privacy Act (FIPPA). At the time, the government said the amendments would help people access services faster while strengthening privacy protections.
Multiple groups and people opposed the change, including McEvoy.
He reiterated that opposition in the review’s introduction: “I remain convinced today that the amendment permitting the fee should be repealed.”
Political parties and journalists use the system to hold government accountable while researchers and business use it for multiple purposes.
At the time of the changes, critics lamented the removal of transparency the changes would bring. Critics said fees would deter some from asking for government information. For journalists and others who make multiple requests in the public interest, a quickly mounting fee bill is a stumbling block in holding government to account, they said.
Among groups opposing the fees were the BC Civil Liberties Association, the Union of BC Indian Chiefs, the Centre for Law and Democracy, the Canadian Institute for Information and Privacy Studies, the Canadian Centre for Policy Alternatives, the Centre for Access to Information and Justice, the Wilderness Committee and the provincial Freedom of Information and Privacy Association.
When the dust of the protests settled, FIPPA was amended in November 2021 to allow public bodies to charge a $10 application fee for general record requests. That was, however, on top of public bodies’ existing authority to charge fees for processing access requests.
In a letter to Beare at the time, McEvoy said he had “deep concern” about several of the BC NDP’s proposed FIPPA changes, particularly one that would allow British Columbians' data to be stored outside Canada and thus subject to foreign law. That was not covered in the review.
The review's findings
The review found political parties made fewer requests over the three periods studied, including a substantial decline before the fee was implemented.
“It is not clear how much of this drop related to the $10 application fee, because the Official Opposition were making fewer requests even prior to the new fee in response to existing processing charges applied by the B.C. government,” the review said.
However, the review also found the number of requests made by the individual applicants increased both before and after the fee was introduced.
“At this early stage, the application fee does not appear to be discouraging individual applicants from making general access requests but the long-term impact is uncertain,” the report said.
McEvoy’s office reviewed the B.C. government’s first six months of data following the imposition of the fee and compared it to the identical six-month periods from the two previous years.
Media submissions for the review argued the application fee posed a barrier to requesting records.
“The preliminary data collected supported these submissions,” the review said. “Both the total number of requests and the number of unique media applicants seeking access to records fell following the implementation of the application fee.”
“Like political parties, media play a vital role in a free and democratic society. Their work in holding governments to account for their actions is crucial,” the review said.
The review also revealed concerns around the administrative implementation of the fee. It said many public bodies haven’t developed criteria for when not to charge or to refund the fee where fairness warrants.
The report said that of the 109 public bodies surveyed, 24 charge a fee and 24 were considering implementing one.
In other cases, public bodies do not accept certain payment methods, which, the review said, has the practical effect of denying access. And, where fees are imposed, it is incumbent upon public bodies to properly notify applicants of this fact, the review said.
“British Columbians should not be denied timely responses to their access requests because of deficient administrative processes associated with the fee,” McEvoy said.
Further, the report said public bodies are not required to charge an application fee.
“The commissioner discourages public bodies from charging the fee,” McEvoy’s office said.
Should they charge, McEvoy offered five recommendations to follow, including:
- clearly informing applicants without delay when a fee applies;
- ensuring the 30-day time limit to respond is not suspended until they have directly notified an applicant of the requirement to pay the fee;
- offering multiple fee payment options to ensure expediency and accessibility for all applicants; and,
- establishing a policy outlining the circumstances when they will charge or refund the fee.
“I urge the B.C. government and all public bodies to implement the recommendations promptly,” McEvoy said.