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ARCHIVED - Review of the Costs Associated with the Administration of the ATIP Legislation - Number 7

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Review of the Costs Associated with the Administration of the ATIP Legislation

April 1996




Table of Contents

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

Executive Summary

Management's Response

1. Introduction

2. Recoverable and Non-recoverable Costs & Related Fees

3. Suggestions for the Recovery of Costs

Appendix A - A Profile of Costs Associated with the ATIP Legislation

Appendix B - Recovery Rates for Time Spent, Average Time Spent to Process a Request & Potential Recoveries for Various Changes in Fees

Appendix C - Other Suggestions and Observations




Executive Summary

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:

  • conducting a survey of selected departments to obtain estimates of their costs associated with these programs;
  • interviewing departmental ATIP coordinators to obtain their views on costs, best practices and suggestions on how the government can reduce its costs;
  • reviewing comparative information from other jurisdictions;
  • analyzing the results of our interviews and documentation review; and,
  • identifying suggestions to reduce the net costs to the government.

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:

  • increasing current fees, including the application fee;
  • changing the approach used and the factors included in calculating fees;
  • changing the approach used to update the fee schedule; and,
  • improving the recovery of eligible costs through the removal administrative disincentives and revision of departmental practices.

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.

Management's Response

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:

  • The report's profile of the government's administrative costs reaffirms and updates cost factors that were identified in previous reports. Twelve representative departments and agencies were surveyed. It is difficult to collect accurate data in this area. Thus the approach employed by the consultant provides data that is more comprehensive and objective than that collected from institutions on an annual basis by the Treasury Board Secretariat. If a similar exercise had to be conducted directly by the Secretariat, it would represent a significant workload for the Division and place a burden on respondents.
  • The section outlining cost recovery practices illustrates how individual elements within the current fee structure have an impact on overall cost recovery. It clearly demonstrates two points regarding increasing fees under the Access to Information Act. The first is that fees represent a very small proportion of total costs. Consequently, even significant increases in fees charged to the public would result in only a modest level of cost recovery. For example, increasing the application fee from $5 to $25 generates only $250,000 or slightly more than 1% of the annual cost of administration. Search, preparation and reproduction factors are similar in that they do not account for relatively large percentages of the overall cost. The second point relates to the review process which is responsible for about one third of the cost. One of the reasons that this activity figures so prominently is attributable to the state of information management within many institutions. Even when combined with sound information management practices, the underlying intent of the activity is to exempt or exclude information from disclosure. Therefore, it is extremely doubtful that assessing fees for the function would be feasible.
  • Throughout the report there are references to various methods used to revise fee schedules in other Access to Information or Freedom of Information regimes. This information is very useful. It provides options and rationales which will assist officials in making informed decisions regarding possible revisions to the outdated fee schedule presently contained in Access to Information Regulations.

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:

  • Routine disclosure of government information, or the dissemination of information using informal rather than legal channels, has always been actively encouraged by Treasury Board information policies. The Division recently initiated a review of the government-wide Communications Policy. Amendments to this policy will reinforce the objective of routine disclosure by elaborating on the principles of "duty to inform" and providing "service to the public".
  • The Secretariat has facilitated a dialogue with Access to Information and Privacy Coordinators to promote a constructive working relationship with the Office of the Information Commissioner.
  • The Information, Communications and Security Policy Division will continue to provide support to Coordinators and their staff to the extent that its resources permit. Regular community meetings have been re-introduced and communication channels will be improved. In the past year, an electronic remote authoring facility was implemented in sixty-five institutions to alleviate some of the workload associated with updating Info Source information.
  • Minister Rock publicly announced that the government would consider legislative review of the Access to Information Act and the Privacy Act. The suggestions presented in the report deal with matters that will be part of any review process.

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.


1. Introduction*

1.1 Background to the Study

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:

  • Our approach;
  • Recoverable and non-recoverable costs and related fees;
  • An assessment of the current cost recovery regime; and,
  • Summary suggestions for costs and fees.

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:

  • develop a global profile of what it costs the government relative to the activities involved to respond to information and privacy requests;
  • analyze and assess the appropriateness of activities defined by the Acts as recoverable and non-recoverable;
  • examine the fee schedule and assess its adequacy (is it complete relative to costs which should be recoverable? does it reflect current market rates?); and,
  • review the approach used to prescribe fees and identify alternatives which would make it easier to maintain the relevancy and currency of the fee schedules.

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:

  • best practices to reduce the number of information and privacy requests made by the public;
  • constraints to reducing such requests;
  • the factors which drive the costs associated with administering these Acts; and,
  • suggestions on what actions are needed to reduce the costs to government to meet the objectives of appropriate disclosure of information.

1.2 Our Approach

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:

  • the appropriateness of the current recovery regimes for both the Access to Information (ATI) Act and Privacy Act;
  • alternatives to maintain the relevancy and currency of the ATI fee schedule;
  • best practices to reduce the number of information and privacy requests made by the public;
  • constraints to managing requests better, both internal and external; and,
  • suggestions on what actions are needed to reduce the costs to government to meet the objectives of appropriate disclosure of information.

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.

2. Recoverable and Non-recoverable Costs & Related Fees

2.1 Cost Recovery Practices for Access to Information Requests

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

  • after the first five hours, search and preparation time can be charged at a rate of $10 per hour;
  • 20¢ can be charged for each photocopy provided; and,
  • computer programming time can be charged at a rate of $20 per hour, and the rate for processing time is $16.50 per minute for the cost of the central processor and all locally attached devices.

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:

  • review time, general administration time associated with individual requests and other miscellaneous costs which cannot be classified as being either search or preparation time;
  • searches for which no records can be found;
  • costs associated with the processing of complaints;
  • overhead costs associated with the ATIP Unit; and,
  • shipping costs.

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.

Analysis of Eligible Costs & Recoveries
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


$105,840


2.78


0.70

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:

  • Departments reported a total of $87,778 in fees related to the recovery of reproduction, computer processing and other costs and another $18,063 for search and preparation costs.
  • While ATIP coordinators were unable to provide sufficient information to estimate of the total reproduction and computer processing costs, they indicated that these costs were relatively small in comparison to the time spent by public servants handling ATI requests.

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.

2.2 A Preliminary Assessment of the Existing 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.

2.3 Cost Recovery Practices for Privacy Requests

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:

  • For the US - reproduction costs.
  • For Quebec - specific costs based on the records requested.
  • For Australia - reproduction costs or charges for supervising the inspection of records.
  • For Ontario - it is recommended that the reproduction costs of records be fully recovered where the requester has already been provided access.

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".

3. Suggestions for the Recovery of Costs

3.1 Intent of the Access to Information Act

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:

  • the public has "... a statutory right of access to information, and that right applies notwithstanding any other Act of Parliament."
  • by complementing existing procedures for access, "... the word "complement" was intended to act as a safeguard: the intent was that ATIP should increase access to government information, not decrease it. If the government stopped disclosing information informally because ATIP existed, then the net impact of ATIP would have been to decrease access to information ... . The word "complement" does not diminish the nature of [the] right [of access] in anyway."
  • "... it would be a substantial change in the principles of the Act to make the identity of the requester or the purpose of the request a relevant consideration ..."
  • "... the rationale for the existing fees was to insert a limiting feature on the workload that ATIP would create. ... the current fee structure was chosen as the best balance between limiting the ATIP resource implications on government and providing the access to information that the Act calls for. Whether or not that balance is still the appropriate one is a subjective judgement. It seems clear that any increase in fees will have the effect of reducing access to government information. I would also assume that Parliament and the Government, when choosing the balance between access and fees, expected that the number of ATIP requests would increase over time as people became more familiar with the Acts. ..."
  • "I do not know enough about the costs and benefits of ATIP to form a firm conclusion as to the appropriate balance to be made. While costs of processing ATIP requests may be increasing, the benefits derived from ATIP may also be increasing, as our economy relies more heavily on information to promote growth and competitiveness.

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. ..."

  • "Our economy is increasingly dependent on information as an engine of growth and competitiveness; the cost of storing, searching and reproducing information is on a dramatic decline; and government will be providing increasing services to citizens electronically (thus, I would expect an increasing number of information requests). I think that government has two choices, not mutually exclusive, to reduce costs and requests:

- 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."

3.2 Options to Consider for the Revision of the Fee Schedule

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:

  • the requirement to provide precise estimates for frequently imprecise searches coupled with the policy requirement that fees must be limited to the lower of estimate or actual;
  • the no cost, no risk right of the requester to appeal estimates made;
  • the time it takes to deal with investigators from the Office of the Information Commissioner (OIC), when a complaint regarding a fee estimate is made; and,
  • the fact that fees recovered are credited to the consolidated revenue fund and not to those performing the work.

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:

  • the practice of making more information readily available to the public domain;
  • the reduction of exemptions available or changes in the approach to apply exemptions;
  • improvement in records management practices and the introduction of technology; and,
  • the streamlining of internal review and approval procedures.

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.

Appendix A - A Profile of Costs Associated with the ATIP Legislation

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:

Costs Associated with Access to Information Program
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:

Costs Associated with the Privacy Program
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.

Appendix B - Recovery Rates for Time Spent, Average Time Spent to Process a Request & Potential Recoveries for Various Changes in Fees

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:

  • Total handling costs, including reproduction and other costs, are $15,120,000.
  • Gross eligible costs are $5,280,000, which includes reproduction and other costs, which apart from shipping costs, are for the most part eligible for recovery.
  • Net eligible costs of $3,811,200 are determined by deducting gross costs by $1,468,800, in recognition of the five free hours allowed for search and preparation time.

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:

  • The Eligibility Factor = adjusted gross eligible costs ($4,780,000) divided adjusted total handling costs ($14,620,000) or 0.33.
  • The Recoverable Time Factor = adjusted net eligible costs ($3,311,200) divided adjusted gross eligible costs ($4,780,000) or 0.69.
  • The Labour Rate Factor = the prescribed rate of $10 per hour divided by the estimated actual rate of $30 per hour or 0.33.
  • The Leakage Rate = the hours actually recovered ($18,067 divided by the prescribed rate of $10 per hour, or 1,807 hours) divided by the total estimated eligible and recoverable hours (adjusted net eligible costs ($3,311,200) divided by the actual labour rate of $30 per hour, or 110,373 hours). 1,807/110,373 = 0.016. In other words, 98.4% of all eligible and recoverable time spent for search and preparation activities is not being captured. Or more simply, for every hour charged, there are another 49 hours that could have been charged, but were not.

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:

Average Time Spent to Process an ATI Request

Cost Area

Average
Time Spent
(hours)

% of
total
time

Associated
Average
Costs

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.

Potential Recoveries for Various Changes in Fees

Change in Fee Element

Estimated
Increase $

Average
Fee $

Percentage
Recovered

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.

Appendix C - Other Suggestions and Observations

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:

  • Administrative Issues and,
  • Suggestions for Consideration as Part of a Legislative Review.

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;
  • exploring opportunities to improve the working relationship with Investigators from the Office of the Information Commissioner;
  • providing financial incentives to charge fees;
  • improving reporting and accountability for the administration of the ATIP programs; and,
  • obtaining additional support from the TBS.

Adopting Best Practices

Suggestions provided by ATIP coordinators regarding cost-effective operating practices, include:

  • Departments should be actively seeking to identify opportunities to routinely make information available to the public domain. Those departments which have had success in doing, so have seen a marked decrease in the number of requests made. These information and publication services can be offered on a cost-recovery basis, as permitted by Section 68 of the ATI Act. In doing so, departments find that they are able to offer such services on a self-sustaining basis in keeping with public demand.
  • ATIP officers should consult with requesters and help them to more precisely define their information needs before responding to a request.
  • ATIP units should use advanced technology to aid in the severing of documents, the sharing of information, the scanning of information and in the analysis of request patterns to identify opportunities to provide more information to the public domain.
  • ATIP coordinators should identify types of requests for which mandatory review by more senior management is not necessary and seek authority to release such responses without additional review and approval. The time involved to release a response can be reduced without significantly increasing the risk of inappropriate disclosure of information through the adoption of an appropriate risk management strategy.
  • ATIP coordinators, in conjunction the TBS, should negotiate reciprocal arrangements or understandings concerning information received from third parties and client departments that such information, subject to certain restrictions, could be disclosed once received by a custodian department. This could result in considerable savings in time and cost by removing the need for consultation.

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:

  • the financial accountability of the programs to the Canadian taxpayer. Five of the twelve coordinators, believed that the true costs and the actual use made of the program in accordance with what was intended by the two Acts are not properly disclosed.
  • a perceived lack of leadership from the TBS. Most coordinators expressed the concern that the ATIP programs are a relatively low priority to the TBS.
  • questions of the appropriateness of investigators from the Office of the Information Commissioner suggesting that fees be reduced or waived were raised by three ATIP coordinators.

Obtaining Additional Support from the TBS

The ATIP coordinators are seeking additional support from the TBS in a number of ways:

  • Networking - Almost all coordinators expressed the desire for regular meetings as a group with the TBS.
  • Advice & Consultation - Several coordinators mentioned the need to access TBS officials, on an as needed basis, to seek advice on how to deal with issues as they arise and, in general, to clarify the intent and application of the Acts.
  • Professional development - A number of coordinators expressed a need for training and workshops dealing with the "nuts and bolts of the job"

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 by amending exemption and how they are applied;
  • reviewing the Section 68 exemption in comparison with the safeguards provided by the External User Charges Policy;
  • harmonizing ATIP legislation with parallel means of access; and,
  • providing a means to deal with voluminous, frivolous and vexatious requests.

Reducing the Cost of Review Activities

Suggestions to reduce the costs of review activities include:

  • Reduce the number of exemptions possible or further restrict their application.
  • Change how the exemptions are applied. In applying exemptions, as described by the Act, there is a tendency to consider the information contained by the document, rather than assessing whether a party will be injured through disclosure. In contrast, investigators and legal counsel look to the injury when ruling on the exemptions applied. This difference in approach can lead to differences in interpretation regarding the application of exemptions. If ATIP units, investigators and legal counsel all used an injury test to determine which exemptions should apply, this might provide for a more efficient and inherently less confrontational review process.
  • Consider addition of new exemptions from access to personal notes, outlines, drafts, preliminary notes or other similar documents. The Quebec legislation provides for such exemptions, which could help to address concerns for candour and quality of the corporate record. As one ATIP coordinator stated, "some staff feel the opportunity for complete candour has been lost. The decision-making process in such areas as policy development may suffer because many of the points discussed never get recorded."

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.


This study was conducted by an external firm.