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This series of evaluations, audit guides, reviews and
studies is designed to improve Treasury Board policies and programs.
Titles in this series already published: 1. Review of Operating Budgets - Delegation Framework 2. Review of Business Planning in the Government of Canada 3. Review of the Cost Recovery and User Fee Approval Process 4. Evaluation of the Policy for the Provision of Services for Employees with Disabilities 5. Audit of Service to the Public in Official Languages - Phase I - Regions of Toronto and Halifax 6. Audit on the Use of Translation Services |
2. Recoverable and Non-recoverable Costs & Related Fees
2.1 Cost Recovery Practices for Access to Information Requests
3. Suggestions for the Recovery of Costs
3.1 Intent of the Access to Information Act
3.2 Options to Consider for the Revision of the Fee Schedule
Appendix A - A Profile of Costs Associated with the ATIP Legislation
Appendix C - Other Suggestions and
Observations
The Treasury Board Secretariat (TBS), is interested in developing a global profile of the costs associated with the administration of the Access to Information and Privacy (ATIP) Programs, the activities that drive these costs, and suggestions regarding how the overall costs could be reduced.
Our general approach involved:
In consultation with TBS, we met with representatives of twelve departments and legal counsel from the Information Law and Privacy Section, Department of Justice.
Based on the results of our survey, we have projected that the overall costs to the government to support the Access to Information program for the fiscal year 1993/94 are about $22,000,000 exclusive of the $3,500,000 involved to support the Office of the Information Commissioner (OIC). Based on the 9,792 requests completed in 1993/94, the average total cost, exclusive of the OIC, is $2,250. Of which, we have estimated that the average handling cost of a completed request is $1,550.
For the Privacy program, projected costs are estimated to be about $13,900,000 exclusive of the $3,700,000 involved to support the Office of the Privacy Commissioner (OPC). Based on the 38,514 requests completed in 1993/94, the average total cost, exclusive of the OPC, is $360. Of which, we have estimated that the average handling cost of a completed request is $265.
Total estimated costs for both programs inclusive of the Office of the Commissioners' costs are $43,100,000 ($35,900,000 exclusive of Commissioners' costs). Cost estimates do not include estimates of court costs as borne by the federal government as these costs are unpredictable which makes them difficult to estimate.
We found that the current fee schedule is out-of-date and incomplete in terms of actual information management practices. We have obtained comparative information on rates and fee guidelines from other jurisdictions. This information demonstrates the extent to which the fee schedule varies from other jurisdictions and offers suggestions on alternative approaches to revise and maintain the fee structure in the future. We examined legislation from the Provinces of Quebec and Ontario and from the federal governments of Australia and the United States.
While we were asked to comment on the appropriateness of the classification of costs as recoverable or non-recoverable, we are unable to reach conclusions in this regard given the scope of our review. This is because the intentions of the legislators concerning the recovery of costs are not clear and the underlying assumptions made regarding the merit of fees may have changed, as the importance of government held information to our economy has changed. For these reasons, we believe that a broader study may be appropriate before revising the current fee structure.
We have made a number of suggestions to improve the ability to recover costs and to reduce the costs of administration. These include:
Based on our discussions with ATIP coordinators and our analysis of the current cost recovery regime, a number of other suggestions and observations are made for consideration within the context of a broader study on how the overall costs to government could be reduced. These suggestions and observations can be found in Appendix C of this report.
The general objectives established for the project included developing a global profile of the government's costs of administering the Access to Information Act and the Privacy Act, analysing the current fee schedule to assess the appropriateness of recoverable and non-recoverable costs and finally, examining the approach presently used to prescribe fees. These objectives were met in the manner described below:
An appendix provides suggestions and observations for consideration as part of an action plan. Included are both administrative and operational issues. The comments have been reviewed in the context of activities described below:
We understand that Consulting and Audit Canada will be submitting the report in final format to the Treasury Board Secretariat. Given the subject matter, it is reasonable to expect that there will be requests for any related documentation. It would be advisable to compile a complete file in advance to ensure a timely response. In addition to providing public access to the report by placing copies in the Departmental Library, we intend to distribute it to all Access to Information and Privacy Coordinators under cover of an ATIP Implementation Report.
This report represents the results of our review of the costs associated with the administration of the Access to Information Act and the Privacy Act. This report directly addresses questions of interest to the Treasury Board Secretariat.
The report is organized into the following sections:
The report is followed by three appendices:
Appendix A provides a profile of costs associated with the ATIP legislation;
Appendix B analyzes recovery rates, time spent to process an ATI request, and potential recoveries for various changes in fees; and,
Appendix C presents additional suggestions and observations for consideration within the context of a broader study on how overall costs to government could be reduced.
Objective
The project's objectives were to:
In addition, after discussion with the Office of Primary Interest, the Communications, Access and Privacy Policies Group, we agreed to obtain the views of ATIP coordinators regarding:
We met with the Communications, Access and Privacy Policies Group, to discuss the TBS's information requirements and to identify departments and agencies which should be considered for direct examination in the conduct of this review. Selection of departments was made based on this input and an analysis of the annual statistical reports as recorded on the TBS's Access to Information and Privacy database.
Because of the limits of existing data on the costs associated with ATIP, a detailed survey questionnaire was designed to develop a global perspective of the total costs involved. Interviews were conducted with ATIP coordinators from selected departments to determine:
Departmental ATIP coordinators consulted in this review included:
- Citizenship & Immigration Canada
- Correctional Services Canada
- Health Canada
- Human Resources Development Canada
- National Archives
- National Defence
- Revenue Canada
- Fisheries & Oceans
- Foreign Affairs & International Trade Canada
- Privy Council Office
- Public Works & Government Services Canada
- Transport Canada.
We met with legal counsel from the Department of Justice's Information Law and Privacy Section to assist in furthering our understanding of the intent of the ATIP legislation.
For comparative purposes, we reviewed the Freedom of Information Acts, related regulations and fee schedules for the Provinces of Ontario and Quebec and for the federal governments of the United States of America and Australia.
We did not meet with any officials from the Office of the Information Commissioner or the Office of the Privacy Commissioner.
Under the current ATI regime, which includes the Act, regulations and the application of guidelines as suggested by the TBS, the recovery of costs depends on whether the activity is recoverable or non-recoverable. Fees may be charged, subject to certain limitations.
The ATI cost recovery regime can be summarized as follows:
Recoverable Costs
An application fee of $5 per request is to be collected before a request is processed. Other fees for the reproduction of records are provided, such as for microfiche, microfilm, and magnetic tape.
Non-recoverable Costs
These include:
The TBS, in its guidelines, recommends that if the fees arising from processing the request are $25 or less, then such fees, other than the application fee, should be waived in recognition of the costs to formally prepare an invoice and process the collection of such fees.
Analysis of Eligible Costs & Recoveries
As shown in the following table, the current regime yields an overall rate of recovery of less than 1% for all handling costs directly associated with ATI requests or about 3% of all eligible and recoverable costs.
Costs & Recoveries |
Eligible $ |
Ineligible $ |
Total $ |
||
Search |
3,150,000 |
- |
3,150,000 |
||
Preparation |
2,130,000 |
- |
2,130,000 |
||
Review |
- |
7,285,000 |
7,285,000 |
||
Direct Administration |
- |
2,260,000 |
2,260,000 |
||
Other |
295,000 |
295,000 |
|||
Total Handling costs |
5,280,000 |
9,840,000 |
15,120,000 |
||
less 5 Free Hours - Note 1 |
1,468,800 |
||||
Net Eligible & Recoverable Costs |
3,811,200 |
||||
Percentage Recovered |
|||||
Eligible & Recoverable Costs |
Total Handling Costs |
||||
Gross Fees |
$152,872 |
4.01 |
1.01 |
||
Net Fees - Note 2 |
|
|
|
Note 1: Assuming that each request takes at least five hours on average to complete at an average labour rate of $30 per hour, based on the 9,792 requests completed in 1993/94, $1,468,800 (5 x 9,792 x $30) in eligible costs that could not be considered for recovery.
Note 2: Gross fees include $47,032 in application fees which are not recoveries of costs incurred. These fees are deducted to determine the actual rate of recovery for costs incurred.
A closer examination of the costs recovered shows that the rate of recovery is made up of two elements. These include recovery for time spent and recovery for incremental non-salary costs.
To determine the respective rates of recovery, we have used the following information:
For purposes of developing separate rates of recovery for time spent and other costs, we have estimated the overall costs for reproduction and computer processing costs to be about $500,000. If this amount is deducted from the total estimated handling costs of $15,120,000, then an estimate of the cost of time spent of $14,620,000. This results in an estimated rate of recovery of 18% ($87,778/$500,000) for reproduction and computer processing costs and 0.12% ($18,063/$14,620,000) for time spent in handling requests.
This rate of 0.12% is analyzed further in Appendix B, to demonstrate the relationship between the current ATI cost recovery regime and actual recoveries. The appendix builds on this analysis and projects the effect on the overall rate of recoveries from the adoption of various combinations of changes to the current fee schedule.
The Application Fee
The current fee is $5. In 1993/94, this fee accounted for a third of all fees collected for a total of $47,032.
Other jurisdictions considered in this review do not have application fees.
Ontario is considering a recommendation to implement a nominal "request" fee of $5 that could be reduced by an institute if the cost of reproduction of the record is less than the request fee. Such nominal fees are believed to be useful in discouraging "capricious" requests without creating a barrier to access.
Quebec's access law defines the right of access to documents held by a public body, subject to the rights respecting intellectual property, and prescribes fees based on the type of document requested. In doing so, Quebec appears to avoid problems faced by other jurisdictions regarding the calculation of fees, forcing requesters to pay fees related to inefficient records management practices of public institutions or the manipulation of requests to avoid the payment of fees.
Several ATIP coordinators suggested that the application fee be raised to $25, which would bring it in line with the threshold suggested by the Treasury Board Secretariat for the waiving of fees. It was argued if it costs at least $25 in administrative costs to process a request, then the application fee should be brought into line with the incremental cost of administration.
Given that informal requests from the public are encouraged by departments and that government programs readily provide access as a normal part of operations, a $25 fee, as allowed for by the Act, may not be unreasonable.
A Comment on Application Fees & The Waiver Policy
While the waiver policy is intended not to apply to application fees, these fees are being waived on occasion, as has been noted in annual reports. While 10,422 ATI requests were received in 1993/94, application fees reported as collected represent only 9,406.4 requests ($47,032 in fees collected/$5). Based on this information, it would appear that about 10% of application fees are waived.
Search and Preparation Time
The $10 rate for search and preparation time was identified by all the ATIP coordinators as being significantly below market. An analysis of this rate determined that this represented a computed annual salary of less than $14,000. Most ATIP coordinators offered that the rate should be raised to between $20 to $25 per hour. If the fee was based on an annual salary of $40,000, the rate would be $30 per hour.
Fees are charged only after the first five hours of search or preparation time. No information was available on the justification of the five free hours. Six of the twelve ATIP coordinators consulted suggested that the five free hours be dropped. Jurisdictions allowing "free time" have found that requesters manipulate their requests in a manner that maximizes free search time.
The federal Act is far more generous in comparison with other Acts.
The Australian Freedom of Information Act applies basic fees when limited effort is incurred and recognizes the costs incurred by the department to provide information. No free time is made available.
The Ontario Act provides only two free hours of search time; but has no application fee. All preparation time is recoverable, including the time taken to physically sever details from a document; what is known as "cut and paste activities" in the federal government. Currently, the Ontario Regulations allow such time to be charged at a rate of $30 per hour.
The US fee guidelines allows for the recovery of direct costs incurred in searching for documents. The first two hours search time are free, except for commercial users. Educational and non-commercial scientific institutions and representatives of the news media (when the request supports the news dissemination function), only pay for the cost of reproduction.
Review Time
Review time is not recoverable. This is consistent with other legislation in general. However, under US legislation, if the requester is a commercial use requester, review time would be fully recoverable. "Commercial use" is defined as a use which "furthers the commercial, trade or profit interests of the requester or person on whose behalf the request is made."
Seven ATIP coordinators suggested that the adoption of a similar approach would be appropriate. One ATIP coordinator suggested that, alternatively, a flat fee could be charged in recognition of the effort incurred to review government held information.
Reproduction Costs
General
The regulations provide specific costs for specific items typically used for the retention and transmission of records. The regulations list costs for photocopies, microfiche, microfilm and magnetic tape and, if an alternative format is preferred, braille, large print, audio-cassettes and microcomputer diskettes. The regulations are written in a manner which does not allow government bodies to recovery of costs for items not specifically prescribed. This limits the ability of the government to recover costs for new devices or emerging technology, for example, video-cassettes and CD-ROMs are not listed.
The US regulations avoid this problem by stating, "[f] or other methods of reproduction or duplication, agencies should charge the actual direct costs of producing the document(s)."
Photocopying Charges
For photocopying charges, the current rate is 20¢ per copy. Most ATIP coordinators believed this to be a fair rate. The rate for Ontario is 20¢. In Quebec, the rate is 25¢. A recent study at the National Archives showed that 26¢ fairly reflects the operating costs associated with the production of a photocopy. Some departments have adopted a rule that photocopies can only be charged after the 125th copy made. It appears to be a novel application of the $25 waiver guideline ($25/20¢ = 125).
The US guidelines provide suggestions that the policy of recovery of full reasonable direct costs be applied and that agencies adopt an agency wide rate for photocopying charges without prescribing a specific rate. Full reasonable costs includes the time taken to duplicate documents, plus the cost of operating duplicating machinery, such as a photocopier. Accordingly, an hourly rate based on the actual salary of the employee performing the work and duplicating documentation is allowed plus 16% to cover employee benefits. The first 100 pages of duplication are free of charge, with the exception of commercial use requesters.
Similarly, the Australian regulations state that charges are not to exceed "the actual cost incurred by the agency in producing the document." This appears to be a practical approach, which does not need to be regularly updated and is consistent with TBS's External User Charges Policy.
For ease of update, the Quebec fee schedule is linked to the consumer price index. However, this approach, as seen by the changes in communication and information technology, could in fact cause fees to rise, when the underlying costs are actually falling.
Computer Programming Time
The regulations provide for a rate that is set at $20 per hour. Similar to the rate for search and preparation time, it appears that this rate is also out of date.
The Ontario rate for programming is $60 per hour. The US regulations provide for recovery of actual salary costs of employees involved. When considering the application of the two free hours of search time that may apply, the US regulations allow agencies to limit free computer search time to the amount equivalent to the cost of two hours performed by clerical searchers.
CPU Operating Time
It is widely acknowledged that fees related to computer operating costs are obsolete and bear little resemblance to the technologies currently used by government. Use of central processing units is no longer a mainstay of government operations and the associated rate of $16.50 per minute, while it may have been valid in the early 1980's, when it was developed, is excessive even in comparison to rates charged by commercial database service organizations.
Because of the difficulty to estimate computer costs, such charges tend not to be levied. With the use of wide spread use of personal computers, costs are falling dramatically in this area.
For other jurisdictions, Ontario only allows for costs invoiced by third parties, and as previously described, both the Australian and US regulations provide for reasonable recovery of direct costs incurred.
Complaints
No fee is required to make a complaint. Other Acts do not appear to currently provide fees when making complaints. The Australian legislation has imposed fees when complaints reach their Administrative Appeals Tribunal. Ontario is considering fees as a means to control the cost of complaints. Ontario's 1994 Review of the Municipal Freedom of Information and Protection of Privacy Act states:
"There is no financial disincentive to launching an appeal and no incentive to mediate or settle issues prior to the hearing stage of the appeal. In the Committee's view, the imposition of a nominal appeal filing fee, similar to that imposed by the civil courts, would discourage the unconsidered and automatic filing of an appeal and cause the parties to re-think the need for an appeal."
In addition, as a means to cut down on the filing of "capricious and frivolous appeals", the Committee recommended that:
"the Act be amended to give the Information and Privacy Commissioner the authority to award costs of the appeal against any party [including the requester], who in the opinion of the Commissioner, has unreasonably and without good cause pursued the appeal or failed to comply with the Act."
Shipping Costs
Shipping costs, while not being allowed by the federal legislation, are allowed in other jurisdictions. The Quebec regulations provide for transmission costs in their fees, shipping costs are explicitly permitted in Ontario and, while fees for normal packaging and mailing methods are not allowed, the US regulations allow fees for sending records by special methods, such as express mail.
Cost of Supervising the Inspection of Records
The federal legislation is silent on the charging of costs associated with the time spent supervising a requester when he or she is physically inspecting original documents.
The US regulations offer the general rule for full cost recovery.
The Australian regulations makes specific reference to the fees applicable for such supervision.
It was interesting to note that while there are no fees currently in place for Privacy requests, most ATIP coordinators suggested, that at a minimum, application fees, similar to those required for ATI requests, should be introduced. While most of these suggestions were made in response to what may be perceived to be unreasonable demands, others recommended the introduction of fees in recognition of the service provided.
Unlike the ATI Act, which provides an incentive to departments to provide value-added information services on a fee for service basis, the Privacy Act makes no such allowances. Absence of a means to offer certain value-added information services, related to personal information, has had the effect of encouraging government agencies to avoid the provision of information services because funding needed to sustain the service is not available.
Fees allowed for by other jurisdictions for fees for privacy requests include:
These other jurisdictions operate under one Act for both matters related to access to information and privacy. These Acts all have provisions to address unreasonable demands. These provisions are discussed in Appendix C, under "Voluminous, Frivolous and Vexatious Requests".
In order to properly assess the merits of the current cost recovery regime, the purpose and intent of the legislation needs to be considered. The Act states, under section 2:
"(1) The purpose of the Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles:
- that government information should be available to the public,
- that necessary exceptions to the right of access should be limited and specific; and,
- that decisions on the disclosure of government information should be reviewed independently of government.
(2) This Act is intended to complement and not replace existing procedures for access to government information and is not intended to limit in any way access to the type of government information that is normally available to the general public."
We were not able to obtain authoritative documentation on the intent of the legislation and the rationale for the existing fee schedule. Assessing the appropriateness of the existing fee schedule and of the classification of costs as recoverable versus non-recoverable is difficult without clearly knowing what was intended. To help appreciate the intent, we met with a representative from the Information Law and Privacy Section from the Department of Justice.
From our discussion the following information was provided:
I do not know enough about the historical pattern of the costs, the value that is derived from society by making government information generally available, the ATIP costs compared to other costs, etc. However, I know that it is virtually impossible to quantify the direct and indirect social and economic benefits to be derived from ATIP. ..."
- by increasing fees or
- by finding ways to organize its information in a way that makes it easier to release information with less effort, time and resources.
For example, a combination of liberalizing exemptions, releasing more (and better) information without waiting for requests, and putting information into electronic format (for example, data warehousing) could substantially reduce research and review time."
Limitations to this Study of Costs and Fees
The focus of this study has been on the costs associated with administering the Access to Information and Privacy Acts and on opportunities to reduce the net costs to the Crown. The options are two-fold: improve your ability to recover costs or raise offsetting fees and reduce the costs of administration, where possible.
However, introducing such measures can affect both the demand and the access to the services made available to the public through the ATIP legislation. In fact, an updated and administratively tighter cost recovery regime may have a detrimental effect on the Canadian economy, as the importance of information to our economy has changed.
This current study does not attempt to establish the benefit received by the public in general nor determine the impact changes in the fee structure would have on the benefits currently enjoyed. A broader study may be appropriate before revising the fee structure.
Options to Improve the Ability to Recover Costs and Raise Fees
Update the Fee Schedule to Reflect Current Costs
This could result in fee increases for reproduction charges, for example, photocopying charges could increase from 20¢ to 25¢ and labour rates moving from $10 (manual search and preparation time) and $20 (programming time) per hour to $30 and $60 per hour. As a result of these changes, fees could rise by about $50,000 based on fees currently charged, raising the overall recoveries by 0.3%.
Raise the Application Fee
If the application fee was raised to $25, as suggested by several ATIP coordinators, this would increase fees by $190,000, based on the number of requests currently received, and raise the overall rate of recovery by 1.3%. The effect of such a change could be greater, as demand could be affected by such an increase.
Eliminate the Fee Waiver Policy
The policy exists in recognition of the costs to calculate and collect incremental processing fees of less than $25, may in fact exceed the fees ultimately collected. This policy position does not appear to be unreasonable. Departments and agencies appear to be having difficulty capturing information on eligible and recoverable costs. If all eligible and recoverable costs were properly captured, the waiver policy would not likely result in a significant amount of fees being foregone.
Eliminate the Five Free Hours for Search and Preparation Time
Based on revised rates of $30 per hour, this has the potential of increasing fees by $1,468,800 or overall recoveries by 9.7%. At rates currently prescribed by regulations, the effect would be $489,600 or an increase of 3.2%.
In addition to improving the percentage recovered, the impact of this change on overall costs from this change could be significant, whether revised or current rates are in affect. Requesters appear to be price sensitive to the charges for search and preparation time, as requests are sometimes split and manipulated to maximize "free" time available. As a direct result, the number of individual requests and demands of departments could be expected to drop.
Allow for the Recovery of Shipping Charges and the Time Spent Supervising a Requester Reviewing Records On-Site
Change the Approach Used to Update the Fee Schedule
Quebec has linked the fees prescribed by its fee schedule to the Consumer Price Index as established by Statistics Canada. In this way, Quebec is able to increase its fees gradually over time. However, application of a general price index to specific commodities can lead to rates which become out of line with true market rates over time.
Alternatively, the approach used to update travel allowances might be considered. Rates for travel allowances are regularly reviewed and updated in comparison to the market rates. Both approaches avoid significant periodic increases in rates which could come as a shock to the public.
Change the Approach Use to Prescribe Fees
While Quebec has fees for incremental costs for the reproduction of documents, it also has fees for specific types of documents. This approach has the advantage of predetermining the costs to be recovered in recognition of the time and other costs to produce the document. For the requester, this approach avoids uncertainty regarding the fees to be applied and prevents a requester from paying for costs related to poor records management practices. For the department, it eliminates the need to calculate a specific fee and the need to defend the fee estimate, if challenged by the requester.
The US approach could be adopted, such that principles and guidelines for the recovery of reasonable direct costs are provided without prescribing fees. This approach avoids any need for revision of fee schedule. This approach also has the advantage of maintaining its relevance. As new technologies emerge and as new devices for the retention and transmission of information are adopted, departments can readily assess charges without being restricted by what has been specifically prescribed in regulations.
Improve the Rate of Recovery of Eligible Costs
We have estimated that for every hour charged, there are 49 hours that could have been charged, but were not. Recoveries could be increased by as much as 21.9%, if the costs associated with all eligible hours, in excess of the five free hours, were recovered. At the prescribed labour rate of $10 per hour, the increase would be 7.3%.
Currently, administrative disincentives exist to recover the fees due. These include:
We have estimated that about 30% of the time spent in the search and preparation of information is performed by ATIP unit staff. This time is not being recovered. In addition, our survey of indicated that ATIP coordinators had differences in opinion as what constituted search and preparation (recoverable) time versus review and administrative (non-recoverable) time. Departmental policies, such as "no records, no fees"; "no charges, if delivered later than promised"; and, not to charge for the first 125 photocopies, also contribute to low recovery of eligible costs.
In addition, requesters have been known to take detailed cost estimates, as sanctioned by the OIC, and proceed to split up a request into a series of discrete requests, in order to maximize the application of the five free hours and the $25 waiver per request. Use of this approach further erodes the government's ability to recover costs.
Under the US guidelines, it states "a requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely to avoid payment of fees. When an agency reasonably believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down for the purposes of evading the assessment of fees, the agency may aggregate any such requests and charge accordingly." The timeframe offered to aggregate requests is 30 days.
As a means to deter frivolous complaints, a complaints fee could be introduced, as is done in Australia. This fee would be refundable, if in the judgement of the OIC, the complaint was well founded.
Reduce the Costs of Administration
Two-thirds of the processing costs associated with the administration of the Access to Information Act relate to non-recoverable activities. Other opportunities exist to reduce overall costs including:
Suggestions in this regard are discussed in Appendix C.
While opportunities here relate mostly to cost reduction, the US practice to recover the costs associated with reviewing documents for release from "commercial users" could be considered for adoption. Alternatively, as suggested by one ATIP coordinator, a flat fee could be charged to commercial or other users in recognition of the cost of reviewing government held information.
A.1 Overall Costs
Based on 1993/94 information, the overall costs to the government to support the Access to Information program are estimated to be $22,000,000 exclusive of the $3,500,000 involved to support the Office of the Information Commissioner. Based on the 9,792 requests completed in 1993/94, the average handling cost of completed requests is $1,550. The average considering all costs, exclusive of the OIC, is $2,250.
For the Privacy program, costs are estimated at $13,900,000 exclusive of the $3,700,000 involved to support the Office of the Privacy Commissioner. Based on the 38,514 requests completed in 1993/94, the average handling cost of completed requests is $265. The average considering all costs, exclusive of the OPC, is $360.
Total estimated costs for both programs inclusive of the Offices of the Commissioner costs are $43,100,000 ($35,900,000 exclusive of Commissioner costs).
A.2 Costs Associated with Access to Information Program
Our analysis of the $22,000,000 spent by government departments and agencies annually shows the following breakdown of costs:
Direct Costs
Handling Costs Search |
$3,150,000 |
||
Preparation |
2,130,000 |
||
Review |
7,285,000 |
||
Administration |
2,260,000 |
||
Other |
295,000 |
||
Total Handling Costs |
$15,120,000 |
||
Complaints |
945,000 |
||
Direct Costs |
$16,065,000 |
||
Indirect Costs
ATIP Unit Overhead Costs |
|||
General Management |
$2,110,000 |
||
Training & Orientation |
1,220,000 |
||
Other O&M |
440,000 |
||
Facilities |
1,300,000 |
||
Minor Capital
Total ATIP Unit Overhead Costs |
515,000 |
$5,585,000 |
|
TBS/Justice
Total Indirect Costs |
350,000 |
$5,935,000 |
|
Total Costs |
$22,000,000 |
A.3 Costs Associated with the Privacy Program
Our analysis of the $13,900,000 spent by government departments and agencies annually shows the following breakdown of costs:
Direct Costs
Handling Costs Search |
$1,000,000 |
||
Preparation |
1,130,000 |
||
Review |
5,980,000 |
||
Administration |
1,750,000 |
||
Other
Total Handling Costs |
300,000 |
$10,160,000 |
|
Complaints
Total Direct Costs |
640,000 |
$10,800,000 |
|
Indirect Costs
ATIP Unit Overhead Costs |
|||
General Management |
$755,000 |
||
Training & Orientation |
625,000 |
||
Other O&M |
115,000 |
||
Facilities |
1,060,000 |
||
Minor Capital
Total ATIP Unit Overhead Costs |
195,000 |
$2,750,000 |
|
TBS/Justice
Total Indirect Costs |
350,000 |
$3,100,000 |
|
Total Costs |
$13,900,000 |
The cost estimates reported above are projections made based on the costs reported by federal departments and agencies interviewed. Because available information on the costs to the government is incomplete and unreliable, estimates were obtained directly from 10 departments representing about 60% of all formal access to information requests and 85% of all formal privacy requests completed by government departments and agencies for 1993/94.
B.1 Rate of Recovery of the Time Spent by Departments in Processing ATI Requests
The overall recovery of time spent by departments to handle information requests is about 0.12% ($18,000/[$15,120,000-$500,000]).
Schedule 1, on page 5 of the report, provides the following information relevant to the calculation of the recovery formula:
Working with our estimate of $500,000 for reproduction and computer processing costs, adjusted estimates for total handling costs, gross eligible costs and for net eligible & recoverable costs are respectively $14,620,000, $4,780,000 and $3,311,200.
From this information, the following factors are derived:
As a formula, the relationship between these factors can be presented as:
100 * 0.33 (eligibility factor) * 0.69 (recoverable time factor) * 0.33 (labour rate factor) * 0.016 (leakage factor) = 0.12.
B.2 Average Time Spent to Process an ATI Request
Based on a cost estimate of $14,620,000 ($15,120,000-$500,000) divided by an estimated labour rate of $30 per hour, the federal government spent 487,333 hours to process ATI requests in 1993/94. A total of 9,792 requests were completed in 1993/94, requiring on average about 50 hours to process. The time spent by cost area breaks down as follows:
Cost Area |
Average |
% of |
Associated |
Review by ATIP Unit |
13.11 |
26.22 |
$393.30 |
Review by OPI |
11.17 |
22.34 |
335.10 |
Direct Administration & Other Handling Costs |
8.52 |
17.04 |
255.60 |
Total hours ineligible for recovery |
32.80 |
65.60 |
984.00 |
Search & Preparation - 5 free hours |
5 |
10.00 |
150.00 |
Search & Preparation - eligible & recoverable time not recovered |
12.02 |
24.04 |
360.60 |
Search & Preparation - eligible & recoverable time recovered |
.18 |
0.36 |
5.40 |
Total hours eligible for recovery |
17.20 |
34.40 |
516.00 |
Total |
50.00 |
100.00 |
$1,500.00 |
B.3 Potential Recoveries for Various Changes in Fees
The following table has been provided to project the impact on the average fee for various scenarios of changes affecting the recovery of fees.
Change in Fee Element |
Estimated |
Average |
Percentage |
Current Average Fee |
- |
15.60 |
1.0 |
Increase Reproduction Fees |
1.55 |
17.15 |
1.1 |
Increase Labour Rates & Reproduction Fees |
6.65 |
22.25 |
1.4 |
Increase Application Fee to $25, retain other fees |
20 |
35.60 |
2.3 |
Increase all fees, including the Application Fee to $25 |
26.65 |
42.25 |
2.7 |
Drop Five Free Hours while retaining current fees - Note 1 |
50 |
65.60 |
4.2 |
Drop Free Hours, Revise Fees, but retain $5 application fee - Note 1 |
156.65 |
172.25 |
11.1 |
Drop Free Hours and Revise all fees - Note 1 |
176.65 |
192.25 |
12.4 |
Improve Recovery of Costs based on current fee schedule & Retain Five Free Hours - Note 2 |
120.20 |
135.80 |
8.8 |
Improve Recovery of Costs based on revised fee schedule & Retain Five Free Hours - Note 2 |
367.25 |
382.85 |
24.7 |
Improve Recovery of Costs based on revised fee schedule & Drop Five Free Hours - Note 2 (This is the maximum recovery possible based on currently eligible costs.) |
517.25 |
532.85 |
34.4 |
Improve Recovery of Costs based on revised fee schedule & Drop Five Free Hours - 50% recovery of eligible costs |
264.65 |
280.25 |
18.1 |
Improve Recovery of Costs based on revised fee schedule & Retain Five Free Hours - 50% recovery of eligible costs |
114.65 |
130.25 |
8.4 |
Note 1: Assumes recovery rate of 29% of all eligible time, which may not be realistic at present, given current rate of recovery of less than 1%.
Note 2: It is estimated that two-thirds of the costs incurred by departments to process access to information requests are ineligible for cost recovery. The estimate presented here is based on the assumption that all eligible activities are identified and properly costed. The estimate provides an indicator of the upper boundary for cost recovery. The last two estimates, based on a 50% recovery rate for eligible costs, are provided as proxies of what might be possible.
Based on our discussions with ATIP coordinators and our analysis of the current cost recovery regime, a number of other suggestions and observations are offered to the Communications, Access and Privacy Policies Group for consideration within the context of a broader study on how overall costs to government could be reduced. While these other suggestions and observations are derived from our interviews with the ATIP coordinators, we did not meet with the stakeholders as a group to determine whether these points are reflective of or would be endorsed by the ATIP community as a whole or whether additional factors need to be considered. These suggestions and observations are presented under the following headings:
C.1 Administrative Issues
The ATIP coordinators suggested that within the scope of the current legislative framework, other opportunities exist to reduce the net costs to government, beyond improving the recovery of costs and raising fees. These include:
Adopting Best Practices
Suggestions provided by ATIP coordinators regarding cost-effective operating practices, include:
Exploring Opportunities to Improve the Working Relationship with Investigators from the Officer of the Information Commissioner
Half of the ATIP coordinators consulted raised questions regarding the approach taken by the investigators from the Office of the Information Commissioner (OIC) in comparison to the approach used by investigators from the Office of the Privacy Commissioner (OPC). The difference in approach was seen as having a significantly different effect on demands upon ATIP operations. We did not interview officials from either office to validate these views independently. It is suggested that this difference in approach and its effect should be explored further by the Treasury Board Secretariat.
Another difference noted was the manner in which the two offices were organized. One coordinator commented that the OPC had organized itself in a manner that readily makes its investigators available for consultation. The OIC was not perceived to be organized in this manner.
Providing Financial Incentives to Charge Fees
Several ATIP coordinators suggested that crediting fees collected back to the department of origin would provide an incentive for a more rigorous charging of fees rather then depositing fees to the credit of the Consolidated Revenue Fund.
Improving Reporting and Accountability
We observed that the database used to gather costs for the ATI and Privacy programs, contained several errors. We would suggest that the TBS introduce integrity controls and reasonableness tests to ensure information is accurately captured and reported on a consistent basis. Without such controls, it makes use of the database for trend analysis or accountability purposes unreliable.
On the issue of public accountability of the programs, ATIP coordinators expressed concerns regarding the adequacy of current arrangements. Concerns expressed included:
Obtaining Additional Support from the TBS
The ATIP coordinators are seeking additional support from the TBS in a number of ways:
C.2 Suggestions for Consideration as Part of a Legislative Review
Suggestions for consideration as part of a legislative review of the TIP legislation, include:
Reducing the Cost of Review Activities
Suggestions to reduce the costs of review activities include:
Reviewing the Section 68 Exemption in Comparison with the Safeguards provided by the External User Charges Policy
The Information Commissioner has expressed concerns for emerging price barriers and has suggested in his 1993-1994 Annual Report that "subsection 68(a) should be amended to ensure that only information which is reasonably priced and reasonably accessible to the public is excluded from the access law." Such an amendment, if implemented, would make user fee and cost recovery initiatives related to government information and publication services subject to the Information Commissioner's approval, either directly through due process or indirectly through the access complaints procedure. Given that the Treasury Board already has the External User Charges Policy, which subjects user fees and cost recovery initiatives to a rigorous review and approval process, additional procedures imposed by amendment to the ATI Act, would be considered redundant and introduce additional costs to the Crown.
Harmonizing at ATIP Legislation with Parallel Means of Access
Access to Information Act
The ATI Act is not clear on what constitutes "informal" access and the latitude available to an department when access is made available to the public by "informal" means. Can requesters be asked to withdraw formal requests or be referred directly to specific information services? For example, if a department wished to set up a research service, free of charge, but subject to different terms and conditions available under the ATI Act, would it be able to do so?
Privacy Act
No provision is made to define the relationship of the Act to other legislation which enshrines access to personal information, or when, information already acquired by government can be exchanged with other departments or levels of government. The coordinator from Correctional Services noted that inmates already possess rights of access to personal information under the Corrections and Conditional Release Act, yet they will routinely make duplicate requests under the Privacy Act for the same information. The coordinator from Human Resources Development Canada noted that the Unemployment Insurance Act, the Canada Pension Plan, the Old Age Security Act and Privacy Act all define access, but are not consistent in defining rights of access.
Regarding the exchange of information, two coordinators mentioned that the Privacy Act restricts the detection of fraud by beneficiaries of governmental programs and questioned whether these restrictions were in the public interest.
Providing a Means to Deal with Voluminous, Frivolous and Vexations Requests
A number of departments provided examples where requesters, in the ATIP coordinator's judgement, had made unreasonable demands of the department which are costly to the taxpayer. Neither Act provides a means to deal with such demands. However, other Acts provide various means to place a check on such demands.
For Voluminous Requests
The US legislation allows agencies to aggregate requests and have access to an exemption "based upon the rationale that the very task of processing and releasing some requested records would place an administrative burden on the agency that would not be justified by any genuine public benefit." Australia allows an agency to disregard a request, or aggregated requests, on workload grounds.
For Frivolous and Vexatious Requests
The Ontario review noted that, although few in number, the financial and operational significant impact of frivolous and vexatious requests is significant. Accordingly, it recommended that an institution may apply to the Commissioner for an order authorizing the institution to disregard the request for access on the basis that the request is frivolous or vexatious. Both British Columbia and Quebec have similar provisions, which allows the Information Commissioner the right to authorize a public body to disregard a request if it is made for purposes not "in accordance with the objects of the Act." The US provision dealing with voluminous requests can also apply to frivolous and vexatious requests.