FOI’s free lunch

The issue of user fees never fails to trigger debate in the world of freedom of information.

The recent imposition of an FOI application fee in British Columbia is a case in point. With almost no public debate, the NDP government jacked up the fee to $10 from zero.

The move was intended to choke off the flow of FOI requests from the opposition party, as well as from a digital news outlet that has been a thorn in government’s side. The fee hike was part of a larger package of “reforms” to reduce access to government information. Only after the package was in place did the B.C. government open the door to public consultation. That is, shoot first, consult later.

Transparency advocates on the west coast called it a tax on information. There’s historical evidence from Ontario and Nova Scotia demonstrating that cranked-up application fees reduce the number of FOI requests. Doubtless, the same now will happen in British Columbia.

At the federal level, the Justin Trudeau government has taken the opposite approach to fees.

The fee for making an Access to Information Act (ATIA) request remains at $5, a level set in 1983 and never adjusted for inflation. In 1983, five bucks was equivalent to almost $13 today. That higher figure gives a better sense of what government thought applicants should be asked to pay. Because of inflation, the cost of filing a request has been dropping steadily for the last 40 years.

The ATIA regime in 1983 included additional fees to be charged after an initial five free hours of search and preparation time, and after an initial 100 pages of free photocopies. In May 2016, the Trudeau government (acting on a 2015 election promise) eliminated those additional fees with a policy directive.

The government in 2019 then embedded the new no-cost regime into the legislation. Today, requestors never pay more than the initial $5 application fee for documents. It sounds wonderful from a requestor’s point of view, a kind of free lunch.

But of course, there’s no free lunch.

Response times to access-to-information requests have deteriorated since the move. Delays had already plagued the system in the full-fee days, driven by inefficient processing, poor records management, tangled layers of vetting, review and consultation, and geriatric technology. COVID-19 compounded the problems. Ending user-pay charges, though, has exacerbated those delays.

Monster requests, for example, are overwhelming some ATIA units. In 2017-2018, the Canada Border Services Agency processed 14.8 million records for a single request, collecting only the $5 application fee to cover costs. Another federal institution processed almost 15 million records in 2019-2020 in response to just three related requests, for a total fee of $15. (These examples dwarf the million pages processed by Foreign Affairs in the late 1990s for a single infamous request about softwood lumber, which cost $1.3 million. Costs then were charged back to the requestor.)

These giant requests are likely the tip of the iceberg. Freed from the prospect of incurring fees, more applicants appear to be declining to narrow the scope of their requests, and are filing more frequently. The result is growing backlogs. There’s no cost to file a formal complaint to the information commissioner, so backlogs burden that office as well.

User fees were never designed to recoup the full cost of responding to freedom-of-information requests, not in Canada, not in the provinces nor in other countries. At best, they recover a mere fraction. Instead, they’re intended to balance interests: to keep the cost of filing FOI requests within an ordinary person’s financial means while imposing modest financial discipline on larger files to prevent the system from being overwhelmed or hijacked.

The federal access-to-information system has become absurdly dysfunctional, in large part because of growing delays. Delays can certainly be attributed to administrative inefficiencies and bureaucracies hostile to transparency. But these long-standing problems have been made worse by the removal of fee discipline. The balance has been upset.

What seemed at first to be an enlightened approach – elimination of user fees – thus comes with a hidden cost that’s especially harmful to journalism. Delays in responses are now measured in months and years. The delays now make FOI increasingly irrelevant to public discourse and accountability, undermining the very purpose of the Act. Delays serve the interests of governments that now are less likely to be held to account in a timely way.

The solution at the federal level may be politically unpalatable, but without major reform that includes fee restructuring, the ATIA system will remain choked. My view is that Ottawa should eliminate the $5 application fee, to ensure ready access for all, just as FOI regimes in the United States and United Kingdom charge no application fees. (As my colleague Vincent Gogolek has pointed out, simply collecting a $5 fee can cost government 10 times that amount.)

After a reasonable number of free search-and-preparation hours, and some free reproduction, costs must start to be charged back to the requestor. Law firms, drug companies, lobbyists and others, for example, should bear more of the cost to the public purse for ATIA requests that serve their own business interests. Fee waivers should be available, and arbitrated fairly, for requestors without deep pockets who serve the public good, such as members of NGOs and community groups. Complaints made to the information commissioner should also come with a modest price tag – not the $25 that Ontario charges, but some lesser amount that signals the significant cost attached to investigations.

Political scientist Alasdair Roberts argued long ago that the test of a charging scheme is whether it rations access fairly. In a cost-free regime, reasonable requestors looking for a limited number of records may find themselves stuck in line behind another requestor asking for the entire contents of filing cabinets in a deputy minister’s office, and facing no cost to do so. That just doesn’t seem fair.

April 8, 2022