Foreword

The Treasury Board Secretariat commissioned this report to develop a global profile of the government's costs of administering the Access to Information Act and the Privacy Act. The report updates and complements information obtained in previous studies. However, its scope is broader in that it identifies significant factors within institutions that contribute to the cost of responding to access to information and privacy requests. In addition, the information is based on a more comprehensive coverage of departments and agencies subject to the legislation.

The study is not intended to reflect government policy regarding fees under the Access to Information Act and the Privacy Act. It is intended to enhance an understanding of the administrative costs of responding to requests in the context of the current fee schedule.

Executive Summary

This report presents the results of Consulting and Audit Canada's (CAC) review and update of the costs associated with the administration of the Access to Information and Privacy (ATIP) legislation. The project's objectives were to:

• Update and augment the profile developed in 1995 on the government's costs relative to the activities involved in responding to information and privacy requests;
• Obtain the views of ATIP Coordinators and other key stakeholders on opportunities that would improve the government's performance in the administration of these programs;
• Examine the fee schedule and assess its adequacy; and,
• Review the approach used to prescribe fees and identify alternatives which would make it easier to maintain the fee schedule.

The study involved a survey of all departments and agencies covered by these two pieces of legislation.

Government's Costs

Based on the results of our survey, the total cost for both programs, inclusive of the Office of the Commissioners' costs, is estimated at $48,640,000 ($39,980,000 exclusive of Commissioners' costs). We found that, in general, the average cost of handling an access to information or a privacy request is about the same as in 1993-94. The overall cost to the government to support these programs has increased as a result of overall changes in demand.

For the Access to Information (ATI) Program, costs appear to be rising at a rate of 7% per year. This is consistent with and slightly less than the 8% per year increase in the number of completed requests. The overall increase of total costs since 1993-94 is about 41%. The increase in completed requests rose by 46% to 14,340 over this same period.

For the Privacy Program, overall costs appear to be stable. While the average per unit cost associated with a privacy request has increased by 12% (reflecting significant increases in general management and facilities incurred by ATIP Units and the operations of the Office of the Privacy Commissioner), the number of completed requests declined by 6% to 36,133.

Views of ATIP Coordinators

The ATIP Community indicated that they perceived that the cost incurred in both search and review time for ATI requests had risen significantly over the last three years. This reflects perceptions on the adequacy of records management practices and increasing sophistication of applicants and their greater use of broad, open-ended requests. The greater use of electronic documents, including e-mails, was perceived by some within the community to be adding to the time spent. However, our analysis indicates that the unit cost of handling ATI requests is not rising. Rather, it would appear that perceptions of rising costs have been shaped by the steady increase in the volume of requests.

For many departments and agencies resourcing the ATI Program is a challenge for a number of reasons. In response to increasing demand, they have re-examined the manner in which they deal with ATI requests, including potential opportunities presented through better use of technology. However, when faced with growth rates of 15%, 45% or 100% as has been the experience of some organizations, it is difficult to cope even with the adoption of smarter operating practices and advanced technology. Even if growth rates could be anticipated, experienced ATIP officers in sufficient numbers are not available, making it difficult to keep up with demand.

It is also recognized that, from time to time, operational managers are faced with the dilemma of competing priorities of completing an ATI request and meeting operational objectives. ATI requests generally are ad hoc and issue driven. This makes it difficult to anticipate demand and allocate resources in advance. When a request is received, responding to it often competes with resources already dedicated to meet operational requirements.

ATI Fee Schedule and Measures to Balance Competing Priorities

Consistent with the project's objectives and in addition to highlighting the opportunities identified by the ATIP Coordinators, we have made a number of suggestions. They relate directly to the fee schedule (its relevance, adequacy, update, and administration) and measures to better enable program managers to balance competing priorities that can arise as a result of an ATI request.

Fee Schedule

We are suggesting that the application fee be retained. Such fees are easy to administer and efficient in their ability to obtain a contribution from applicants for services rendered. The application fee should purchase a defined level of service for the applicant. The fee should be based on public expectations of a reasonable contribution from applicants for access services.

The fee schedule should be simplified and linked to the application fee. From a client service perspective, this would help enhance the predictability of fees above the basic level of service. Simplifying the fee schedule is expected to reduce both the incidence of fee related complaints and time required to investigate and resolve such complaints. Savings in costs and time would result for all concerned, including the Office of the Information Commissioner and the applicant.

We are suggesting that the fee schedule should be updated annually. This avoids the price shock and difficulty of implementing significant increases after an extended period of time. The fee schedule could be indexed to the average annual increase of the salaries of public servants.

Balancing Competing Priorities

Parliament expects that government programs, including the ATI Program, be delivered in keeping with the needs of citizens served by those programs and broader public expectations. The taxpayer expects that all programs be delivered prudently and with due regard for the funds entrusted. The government's policy on cost recovery directs that users pay a fair share for services received. The Access to Information Act enshrines a citizen's right of access to records under the control of a government institution in a manner which complements other means of access. From an institution's perspective, the current legislative framework does not provide sufficient means to balance these competing priorities when conflicts arise.

Opportunities exist to enhance a department's or agency's ability to better balance competing priorities and reduce duplication of effort that can occur when responding to an ATI or a privacy request. These include:

• Harmonization of the right of access to information provided by ATIP legislation with other acts that provide access;
• Provisions to address the issue of voluminous and repeated requests; and,
• Measures to aggregate costs of requests for information where multiple requests are made by one person.

Additionally, we are suggesting the introduction of cost thresholds over which a department or agency would not be obligated to respond to an ATI request. (This suggestion would require a legislative change.) It recognizes the need to ensure the continuity of other public programs and the need to manage financial resources prudently given the resource implications an ATI request can have on operations.

Fees for Privacy Requests

We also considered the question of fees as it relates to a request for personal information as provided by the Privacy Act. Currently, no fees apply. The introduction of fees is not suggested as it is in the Government's interests to ensure that the records it keeps are accurate and current.

1. Background

Introduction

The Treasury Board Secretariat asked Consulting and Audit Canada to update the 1993-94 review of the costs associated with the administration of the ATIP legislation which was conducted in 1995. In addition to providing an update of the 1993-94 review, this report provides information on:

• The nature of the requests made under both the Access to Information and Privacy Programs;
• Suggestions from the ATIP community on what can be done to reduce administrative costs, while ensuring that the spirit of the Acts is respected; and,
• Our suggestions based on our review of survey results and of comparable legislation from other jurisdictions.

The first two sections in this report present our analysis of requests. This is followed by a summary of opportunities suggested by ATIP Coordinators. The questions posed to the ATIP community in our survey can be found in Appendix A and summaries of the responses can be found in Appendix B.

The remaining sections of the report examine the operational context within which departments and agencies respond to information requests, the utility of the current fee schedule, alternative approaches found in or suggested by other jurisdictions and our suggestions borrowing from the experiences and suggestions of others. Our suggestions include measures that would simplify the administration of fees and enable departments and agencies to better balance competing priorities.

Appendix C presents an estimate of the overall costs involved in meeting the requirements of the Access to Information and Privacy Acts for fiscal year 1998-99.

Project Objectives and Scope

The project's objectives are to:

• Update and augment the profile developed in 1995 on the government's costs relative to the activities involved in responding to information and privacy requests;
• Obtain the views of ATIP Coordinators and other key stakeholders on opportunities that would improve the government's performance in the administration of these programs;
• Examine the fee schedule and assess its adequacy; and,
• Review the approach used to prescribe fees and identify alternatives which would make it easier to maintain the fee schedule.

All departments and agencies covered by these two pieces of legislation were directly surveyed to confirm the costs reported and to obtain details on the costs incurred. To the extent possible, cost estimates for this study will include court costs and those of central agencies, including those of the Treasury Board Secretariat (TBS), the Privy Council Office and the Department of Justice.

Approach

Because of TBS's interest to involve all departments and agencies, a survey was conducted to obtain information needed to develop cost projections and to provide the entire ATIP community the opportunity to offer suggestions. The survey tool used in the 1995 study was used as the basis for the current survey. Changes were made to reflect specific interests of the TBS and representatives of the Privy Council Office. The draft survey guide was provided to both the Offices of the Information (OIC) and Privacy (OPC) Commissioners. The OPC extended us the opportunity to discuss the study and survey tool but made no suggestions on the design to the survey tool. The OIC did not meet with us and did not provide any feedback on the survey tool.

The survey tool was sent by e-mail or facsimile to 135 departments and agencies. A separate survey tool, designed for Legal Service Units (LSUs), was delivered to 57 LSUs. Prior to sending out the LSU survey tool, ATIP units were asked if they routinely consulted their respective LSUs. LSU surveys were sent only to those organizations for which such consultations occurred. Cost projections were made based on the 107 departments and agencies covered by the two Acts for fiscal 1998-99. The remaining 28 agencies only came under the Acts or took on full responsibility for ATIP requests during 1999-2000. These agencies are not included in our cost projections but their comments were solicited on the other aspects of our survey. A list of respondents to our survey can be found in Appendix D.

2. Furthering Our Understanding of Access to Information Requests

As shown noted in Appendix C, a 46% increase in the number of requests was observed over the last five years. Associated costs increased in parallel by 41%. However, shifts in cost patterns were observed. On average, search costs have decreased significantly - about 30%. These savings were offset by increasing costs in administrative and other activities (64%) directly associated with the handling of individual requests and significant increases in the costs of responding to complaints (104%). A significant growth (316%) in central agency costs was noted as a result of capturing more of the factors associated with government-wide support functions and an increase in resources allocated to them.

Analysis of Direct Time^{Footnote 1} Spent Responding to Access to Information Requests

The patterns of costs are consistent with the comments received from the ATIP Community and shows that overall costs have increased significantly. On a unit basis, overall costs are stable or declining slightly. In analyzing the time spent per request for 1998-99, it was noted that it took about 38 hours to respond to an individual request, including the time to resolve related complaints (see Table 1 below). This is similar to the 40 hours estimated for 1993-94. However, search time is about half of what it was in 1993-94. Conversely, the costs associated with direct administrative time and complaints resolution have risen significantly. Preparation and review time appears to be relatively stable.

ATIP Coordinators were asked to describe current trends as experienced over the last three years. Respondents reported that trends were increasing across the board, including the complexity of requests, the cost to complete a request, response time and the number of complaints.

Overall costs are rising. Cost increases appear to be related to the increased volume of requests. The average unit cost of handling an individual request, in comparison with 1993-94, appears to be declining slightly. The increased frequency with which requests involve senior management participation may have contributed to the perception of growing costs and complexity. As a result, management has become more aware of the impact made of requests on resources and on the ability to meet operational program commitments and requirements. For additional discussion on the issue of competing priorities, see page 14, section 5 on the Challenges to Maintain the Quality of Access to Information Program Services.

In a focus group session attended by seven departments, it was suggested that the 7% annual rate of growth in completed requests was attributed to an increasing sophistication of applicants, i.e. they are more knowledgeable of their rights and more at ease with exercising them. Included is a willingness to complain when delays are experienced or expected information is missing or not provided.

The reported decrease in search time was a surprise to the focus group. The opposite was expected given the group's perception regarding the general state of records management practices and the growth in different formats used to hold government information. Electronic documentation and e-mail messages require considerable effort to sift through and to eliminate duplicate records. This was seen as contributing to search time. For some organizations, complexity and unit costs could indeed be rising but overall search time appears to be decreasing. There are a number of possible reasons for the observed reduction in search time in comparison to the 1993-94 base year:

• The previous study was undertaken in the wake of Program Review and the reorganization of many government departments. The relative stability of government departments and agencies since then has likely had a positive impact on search time.
• Respondents indicated in their suggestions made in Part I of the Survey that greater use of technology was being made and that several major departments had recently taken steps to streamline their processes.
• Citizenship and Immigration Canada, which makes up 19% of the total volume of completed requests, indicated that despite trends of increasing complexity costs were stable or declining.
• Comparative analysis of the 1993-94 estimate with the 1998-99 estimate suggests that for those organizations with relatively few Access requests, the handling costs are about half that of the other organizations. A review of comments made by smaller organizations supports this analysis. In general, smaller organizations can more readily find the information required, have fewer levels of approval and receive fewer requests requiring detailed review.
• The increasing volume, in itself, was perceived by the focus group as having a positive impact on search time in that "the OPIs [office of primary interest] know the drill. The actual records-retrieval process is not time-consuming. The bulk of the time taken by OPIs is spent on reviewing files for exemptions, discussing the sensitivity of information and debating what should be exempted and what is sensitive." The handling of access requests appears to have become a routine service for some departments and agencies.

While the overall cost to handle an individual request appears to be stable, it has been noted that more time is spent helping to clarify and facilitate a response (12% increase in direct administrative time) and resolving complaints (40% increase). On the other hand, a 52% decrease has been observed in search time.

Analysis of Requests and Sources

Respondents indicated that the increasing sophistication of applicants and greater interest in government operations and issues of the day are contributing to the overall demand. As the number of requests increase, so do the number of complaints. However, the frequency of complaints appears to be rising more rapidly, which again is consistent with the perception that applicants are more knowledgeable of their rights and more willing to exercise their right to complain. In 1993-94, complaint resolution amounted to 6% of the time associated with requests. For 1998-99, complaint resolution is estimated to take up 9% of direct time. While the comments from respondents indicated that complaints occur for a variety of reasons, slow response times appears to be the most frequent reason.

Table 2 provides an overview of who makes requests and the shifts in demand from 1993-94. Two groups dominate the demand for requests - business (35%) and the public (36%). Public applicants appear to be many and widespread and generally tend to make one request. Business interests, who include professional applicants, are composed of a small number of applicants who tend to make multiple requests. It is estimated that 43% of the costs to provide Access to Information services is attributed to meeting the needs of this group. This higher than proportionate percentage of costs could be reflective of a higher level of complexity related to requests from this source which has a greater tendency to make broad or omnibus types of requests. The costs associated with the public are proportionate to demand at 36%. The next two groups are media at 12% of requests and Members of Parliament at 9.5% of requests. The costs associated with media are estimated at 7% and, Members of Parliament, 8%. Less than proportionate costs could indicate more precise and/or specific requests.

Note 2: Current reporting requirements do not require Members of Parliament to be identified as a source. As part of our survey, we asked the ATIP community to separate out requests from Parliamentarians. For example, the Province of Alberta identifies elected officials as a source. As of March 31, 1999, 23% of all general information requests received have come from elected officials, since the introduction of the Alberta Freedom of Information and Protection of Privacy Act in 1995.

Note 3: Requests from Members of Parliament were assumed to be included with requests from the public in 1993/94.

Respondents were asked to comment on alternative means of access. The response rate to this question was low making interpretation difficult. Respondents indicated that opportunities exist to make information more readily available to the public which could reduce the need for Access requests. They also indicated that some applicants made significant use of Access requests to obtain information already provided by the Courts through the normal conduct of legal proceedings.

3. Furthering Our Understanding of Privacy Requests

Overall costs for the Privacy Program appears to be stable which is consistent with the overall assessment by respondents. An analysis of costs indicates that handling costs have dropped by 16%. Shifts in the costs have been detected - search costs have risen 19%, while review costs have dropped 25%. The costs of resolving complaints have risen 30%. Indirect costs to support ATIP Units have risen significantly (42%) over the last five years, offsetting the reduction in handling costs.

Analysis of Direct Time Spent Responding to Privacy Requests

Respondents indicated that the average time to respond to a Privacy request had dropped by 9%. At the same time, the time to resolve complaints had risen by 40%. As a result, an overall reduction in direct time of 6% had been observed (see Table 3 below).

The reasons for shifts in search and review time are not apparent from the survey responses or comments by the Focus Group, with the exception of complaints. Respondents indicated an increasing awareness of their rights under the Privacy Act in this regard as contributing to the rise in frequency and cost of complaints.

Analysis of Requests and Sources

Requests come from clients, the public in general, their agents/lawyers acting on their behalf and employees. The vast majority of applicants make only one request (93%). Less than 4% of applicants make 7 or more requests. Associated costs with meeting the needs of this latter group are about 9%. In about 60% of the time, information requested under the Privacy Act is accessible and/or limited review is required. This contrasts with information requests made under Access to Information where only 28% of information requested is readily available and/or a limited review is required.

Similar to Access to Information, the response rate to the question on alternative means of access was low making interpretation difficult. Respondents did indicate that opportunities appear to exist to make information more readily available to the public which could reduce the need for Access requests. They also indicated that some applicants made significant use of Privacy requests to obtain information already provided by the Courts through the normal conduct of legal proceedings.

4. Suggestions from the ATIP Community

We solicited the views of ATIP Coordinators on opportunities that would improve the government's performance in the administration of these programs. Appendix B summarizes the responses received for each open-ended question posed in our survey. For each question we have provided a high-level summary of the comments received. Observations pertain to both Access to Information and Privacy unless otherwise indicated.

How can the approval process be streamlined to reduce costs?

Respondents indicated that the greatest opportunities for streamlining the approval process involves increased delegation of authority to Coordinators and a clear understanding of roles and responsibilities in the handling of requests. This includes clarifying the role of the Minister's Office, Legal Services and Public Affairs. The Treasury Board Secretariat could help develop a standard template for ministerial approvals. Other suggestions included:

• Offering informal processes to access information routinely requested.
• Communicating directly with the OPI to clarify requirements and determine whether information can be released informally.
• Expediting routine and straightforward requests.
• Training of staff at the initial stage of the process to ensure understanding of the requirements under the Act and how to apply exemptions.
• Educating senior management on the requirements of the Act and the role of ATIP Coordinators.

The most frequent response from respondents was that no additional streamlining was possible for their organization. Several indicated that they had recently reexamined and redesigned their approach for processing requests.

How can information management practices be improved to reduce costs?

Many respondents identified records management as an area for improvement. Suggestions included:

• Providing concurrent or complementary training within the organization on good records management practices and the requirements of the Acts;
• Making information more readily available to the public via the Internet and the organization's library and reading rooms; and,
• Improvements in and better use of technology and use of electronic documents and electronic management systems, including classification of documents, as they are created.

How is your department using advanced technologies to facilitate access?

Examples provided on how technology was being used to facilitate access included the provision of services via the Internet, the introduction of electronic document management systems and greater use of electronic mail. Several respondents referred to the linkage of ATIP systems and operational databases to facilitate the workflow. Use of and recent upgrades to ATIP tracking system software was seen as having a positive impact on facilitating access.

What improvements should be made to the policies and regulations to reduce costs?

The majority of respondents made suggestions to increase, amend or eliminate fees. These comments relate to the Access to Information Act. Suggestions included:

• Creating special fees for professional applicants;
• Introducing provisions or the authority to deter or reject duplicate, repeated, voluminous, frivolous and vexatious requests and frivolous complaints;
• Eliminating the application fee given the cost to collect the fee;
• Increasing fees for search and preparation time; and,
• Improving and updating the policy pertaining to the Management of Government Information Holdings and encouraging greater compliance with it.

The last two suggestions were seen to have a complementary and direct benefit on the administrative costs to support access provisions of the Acts.

Do you have other comments?

Under this question, concerns were raised regarding the appropriateness of the cost recovery provisions of the Access to Information Act for crown agencies which have a statutory obligation to be financially self-sufficient. Specifically, information requested, while consistent with the legislation, could undermine the organization's ability to achieve its financial objectives consistent with the commercial nature of the enterprise. The Act was seen as making it difficult for an organization to protect commercially sensitive and competitive information.

A number of suggestions were made under the topic of tools and resources. It was suggested that the TBS could provide an inventory of well-trained employees for assignment on short notice. This would be helpful in dealing with the often short-term peaks in demand. TBS could also sponsor a forum where ATIP Coordinators could meet and discuss ideas, experiences, and important issues. More Treasury Board Secretariat sponsored training; education/awareness programs and assistance; and the provision of resources with hands-on experience in the interpretation of the Act were also suggested.

5. Challenges to Maintain the Quality of Access to Information Program Services

The challenges to departments and agencies within the ATIP community relate to the balancing of competing priorities and securing the resources needed to support timely responses.

Balancing Competing Priorities

The overview of Dr. Alasdair Roberts, Queen's University, 1998 study on "Assessing Canada's FOI (Freedom of Information) Laws", raises the issue of competing priorities, by stating:

John Reid, the Information Commissioner of Canada, in his remarks to ATIP Coordinators on November 17, 1998, also acknowledges the challenge faced by a program manager in balancing the achievement of operational priorities with the public's right to know. To quote:

It is broadly recognized within the Public Service that it takes time, energy and care to respond to access requests. It is also recognized that it is difficult to anticipate the nature, extent, timing and number of access requests that could be made by applicants. These factors can make it challenging to cope with a request, especially when dealing with an emergency situation, such as a humanitarian aid or peacekeeping mission, as occurred in Kosovo, or in the recall of contaminated food products. When this occurs, an ATI request can pose a real dilemma for the OPI, as the effort and timeframe required to respond to a request may conflict directly with the effort and urgency of response to the emergency or operational imperative at hand.

Securing the Resources Needed to Support Timely Response

Considerable discussion of the focus group related to practical problems of resourcing what is in essence an "ad hoc" information and research service. The resourcing issue confronts both the ATIP community, as a whole, and OPIs.

For the ATIP Community there are two dimensions - budgeting and staffing. While the overall growth, based on completed requests, is about 7%, the growth in requests is not spread evenly across government departments and agencies and the rate of growth for a given department and agency can be difficult to predict. For example, three major departments stated that their rates of growth for the last year were respectively, 15%, 45% and 100%. Even if an ATIP Unit was able to predict demand, it is difficult to obtain the resources needed to support delivery of the program when faced with such growth in demand. Requests for additional resources must compete with resource requirements of a department's or agency's programs, operations and other corporate services. Under certain circumstances, special consideration or access to supplementary funding should be provided in order to ensure that ATIP Units have sufficient resources to facilitate the timely response to requests.

Even when operating budgets for ATIP Units are adequate, several ATIP Coordinators indicated that there are not enough skilled ATIP Officers available to keep up with the growing demand. Problems have been experienced recruiting and retaining staff needed by ATIP Units. ATIP Coordinators stated that the private sector was not well positioned to help as there are few knowledgeable consultants available. Suggestions presented above included the creation of a talent pool within the Treasury Board Secretariat that could be assigned to departments to respond to short-term peaks in requests and help fill vacancies as they arise.

From an OPI or operational program manager's perspective, where large volumes of access requests are routinely received, the opportunity exists to identify and justify resource requirements as part of the budgeting process, and/or introduce new information services, or provide access on an informal basis. For other organizations, requests tend to be issue driven and sporadic making it difficult to anticipate and obtain the resources required. Limited experience and infrequent requests make it difficult to estimate what is required to respond to a request; secure the resources needed to do the work; or, put in place the processes that would enable the organization to respond to the request efficiently.

This is particularly true if the request is broad and/or inherently complex, such as a request for "all records/documents (by whatever name) concerning [a certain subject area] from 1997 to 1999 inclusive." There may be limited opportunity to delegate work even if resources were available as knowledgeable officers need to review the documentation to ensure the accuracy, completeness and the appropriateness of the information to be disclosed. When this occurs, a program manager could be faced with the dilemma of having to satisfy both the operational imperatives at hand and the public's right to know in a timely fashion. Within the context of a lean public service and a 46% increase in completed requests over the last five years, the pressures faced by OPIs have increased significantly.

It is within this context that the ATIP Units and OPIs are seeking greater flexibility, when responding to requests.

6. The Utility of the Current Fee Schedule

In 1998-99, the Crown collected $290,000 in fees or about $20 per request. This includes the $5 application fee for an access request and $15 for the recovery of eligible search and preparation time. This represents a recovery rate of about 8% of the associated costs and 1.4% of our estimate of total handling costs.^{Footnote 2}

The cost recovery regime is complex and cost factors used are out-dated, as described in detail in the CAC Report entitled, "Review of the Costs Associated with the Administration of the Access to Information and Privacy Legislation - October, 1995." The cost recovery regime applies different rules to the various activities associated with responding to a request. Search and preparation time is eligible for recovery but only after 5 hours. However, time spent in the direct administration of a request and review time is not recoverable.

Fee estimates determined by the department or agency are subject to appeal by the applicant, at no cost, by way of a complaint to the Information Commissioner. As there are no costs or other consequences to an applicant who complains, it is to the applicant's advantage to complain. The determination of fees is not precise. The classification of activities is subject to interpretation. The ability to estimate what will be required and how long it will take to respond to a request, especially for a complex or broad one, is difficult to do with precision. These conditions make the current approach to charging fees adversarial and frustrating.

While not directly assessed by our study, estimating and finalizing the fee to be paid likely costs the Crown more in non-recoverable administrative time and in the resolution of complaints, than it recovers (in 1998-99, the total amount recovered was $290,000). Given a recovery rate of 8% and taking into account the time spent to administer the fee, the current fee schedule is inefficient and uneconomical.

Our 1995 study made a number of suggestions to update the fee schedule and improve cost recovery. At that time, we raised the question regarding the cost recovery objectives as it relates to the intention of the Act and how fees impact access. The Australian Law Reform Commission (ALRC), in its 1995 review of Australia's federal legislation, had similar observations as they relate to the efficiency and performance of the Australian cost recovery regime. These views are consistent with the views expressed by ATIP Coordinators, as part of the current study and as expressed in our 1995 study. The ALRC's comments are presented below.

7. Alternative Approaches

In discussion with the focus group on alternatives, it was acknowledged that the fee schedule needed to be revised. The reason was not out of concern for cost recovery, although concerns for the subsidy granted by the Act to professional applicants were expressed. The fees generated are insignificant and flow to the Consolidated Revenue Fund. Fees are seen as administratively difficult to charge and collect, but at the same time are believed to be an effective means to regulate demand. We reviewed legislation for other jurisdictions and related studies to identify alternative approaches and means to achieve the two objectives of cost recovery and regulation of demand while still recognizing the importance of preserving the right of access.

Both the Roberts study and the ALRC's review recommended changes to the approach for the charging of fees. Roberts recommended the adoption of the US model, which applies differential fee schedules depending on who the applicant is. Roberts observed that information requests by applicants from the general public dropped off significantly when Ontario increased its fees in 1996. In contrast, requests from businesses did not seem to be affected. Justification for a differential fee schedule could be argued that if the applicant's motive is the pursuit of profit or personal gain, rather than being motivated by public interest per se, then higher fees should be charged.

On the question of differential fee schedules the ALRC argued that it would be complex to administer and would confuse applicants. It would be difficult to determine which categories of request should be singled out for higher charges and, in many cases, to determine the applicant's motive. Use of differential fee schedules overlooks the benefit to society. Consider the relationship between the beekeeper and the fruit farmer. As a fruit farmer, you wouldn't deny your neighbour's bees access to your trees in his commercial pursuit of profit in the making of honey. The professional applicant could be considered in a similar light, as it relates to the dissemination of information. The professional applicant's actions, while contributing to her or his livelihood, further the achievement of openness and accountability of public institutions. In a knowledge-based society the free flow of information can be a competitive advantage.

The ALRC proposed that, instead of the current input activity based approach to fees, outputs should be used to determine fees. If no documents were released, no fee would apply. For example, the number of pages released was suggested as a basis to determine fees owed. This approach would be administratively easier to apply and defend. The Freedom of Information Commissioner would play a role in setting the fee schedule, liaising with the Chief Government Information Officer when determining the scale of charges. The scale should be set on the basis of a realistic assessment of the average number of hours a competent administrator in an agency with efficient record management systems would spend on search and retrieval. The scale could be effected either by way of regulations or a legislative instrument so as to be subject to parliamentary scrutiny. A standard fee scale would provide greater certainty and protect applicants against agencies with inefficient information management systems. In setting the fee scale, the Freedom of Information Commissioner should have regard to various factors such as what information technology and record management systems an agency could reasonably be expected to be using. It was suggested that the scale should be reviewed annually.

The United Kingdom's draft legislation for Freedom of Information, introduced in the House of Commons on November 18, 1999, included a provision that limits fees to 10% of the reasonable marginal costs. It also contained a provision which would exempt "public authorities from the obligation to disclose the information requested if the cost of doing so exceeds a threshold prescribed by the Secretary of State. It allows the Secretary of State to prescribe different amounts for different authorities. It enables the Secretary of State to make regulations to allow authorities to aggregate the costs of requests for information where two or more requests are made by one person, or by two or more persons acting together." Public authorities would also not be "obliged to comply with vexatious requests and an authority does not have to comply with repeated or substantially similar requests from the same person other than at reasonable intervals."

The Australian Freedom of Information Act allows the rejection of repeated requests for information that the applicant has been advised is for sale or for information to which access has previously been refused. Commenting on the merits of provisions allowing an agency to reject a "vexatious" request, the ALRC stated that "[i]n the twelve years of operation of the Act, few requests could properly be classified as vexatious." It observed that while there was a high level of support for such a provision, "vexatiousness" was a vague concept. The concern was expressed that such provisions could be open to abuse by agencies and would likely result in unpredictable implementation.

8. Summary Suggestions

The Access to Information and Privacy Programs are responsive programs provided by the government to its citizens. Governments cannot as readily expand their services on the same basis as a commercial enterprise when faced with increasing demand. The federal Access to Information Act does not impose limits on requests nor offer government departments and agencies the means to combine requests or to reject requests to the extent that exists for or is contemplated by other jurisdictions. The current fee schedule is modest in comparison with other jurisdictions and appears to be plagued by similar difficulties in its administration.

What is proposed are a number of suggestions borrowing from the approaches adopted by others. The suggestions relate to both measures that would simplify the administration of fees and would enable departments and agencies to better balance competing priorities. We are also suggesting that direct discussions occur with representatives of the various client groups to obtain their views and feedback on proposals for change. This section concludes with a general comment on fees for personal information.

• Retain the Application Fee - Application fees are easy to administer and are not subject to complaint. Recognizing that the current charging regime is inefficient and the pursuit of cost recovery could undermine access, application fees should be retained but increased, taking into consideration the considerable cost incurred but rarely recovered in responding to a request.

• Link the Application Fee to a Defined Level of Service - The United Kingdom draft legislation contained a proposal that 10% of reasonable marginal costs would be a ceiling on costs to be recovered. We have estimated that in 1998/99 the Crown recovered about 8% of the costs associated with search and preparation time. This rose to 11% when the application fee is included. By linking the application fee to a recovery rate for reasonable marginal costs, the government would be able to avoid discussion on the nature of an activity and its classification and when and what costs should be waived. For example, based on our analysis of the costs associated with an average request and a 10% recovery rate, the application fee would be $30 ^{Footnote 3}. This represents about 10 hours of search and preparation time or $300 in reasonable marginal costs. It takes into consideration the incremental costs of direct administration in processing an application.
• Simplify the Basis for Estimating Fees above the Basic Level of Service Purchased by the Application Fee - Fee estimates are difficult to do with precision and to predict. Large fee estimates are often subject to complaint.

• Update the Fee Schedule annually - Annual update avoids dramatic price increases. If search time was selected as the basis for the fee schedule, its update could be indexed or linked to the average annual increase in salary costs.
• Introduce Cost Thresholds over which a department or agency would not be obligated to respond to a request - While public servants are expected and required to respond to a variety of demands, provisions should exist to allow an organization not to respond to requests with significant resource implications. The intent here is not to preclude a request but rather to encourage greater precision in the request and to help applicants to appreciate the impact their requests can have on operations.

• Introduce Other Measures - Changes could be made to the Act that would enable departments and agencies to better balance competing priorities and reduce duplication of effort that can occur. These include harmonization of the right of access provided by both the Access to Information and Privacy Acts with other Acts that also define and provide parallel means of access, introduction of provisions to better address voluminous and repeated requests and introduction of measures to aggregate requests.

Fees for Personal Information

The Privacy Act currently does not have fees. The introduction of fees is not suggested as it is in the Government's interests to ensure that the records it keeps are accurate and current. The ALRC on the subject of fees stated: