Fee ruling ‘small step in right direction’
Government can no longer charge for data access
The Federal Court says the government can no longer charge people fees for the search and processing of electronic government documents covered under access to information legislation.
In his ruling, Justice Sean Harrington said the wording of the Access to Information Act and its regulations are “vague” and that practices under the act “have practically stood still” since the days when computers were rare in the workplace.
The case centred on a request by a citizen for government procedural documents outlining the use of the Social Insurance Number records database. In particular, the court was asked to decide if “electronic records” are considered “non-computerized” records. The distinction is important because, under the act, anything deemed a “non-computerized” record is subject to a fee of $2.50 per quarterhour of time it takes a government employee to find and prepare the documents for release.
Human Resources and Skills Development Canada, which handled the request, quoted the applicant $4,180 to search for and prepare the documents. The court ruled it can’t do that.
The ruling is a small win in a much larger fight to overhaul Canada’s antiquated access laws, according to Tom Henheffer, the executive director of Canadian Journalists for Free Expression.
“It’s a great but very, very small step in the right direction. You’re trying to put tiny little Band-Aids on a system that’s basically had all its limbs cut off,” he said. “It’s ridiculous that the information commissioner would even have to take the government to court over something like this.”
The Access to Information and Protection of Privacy Act is a legal tool Canadians can use to get information from the federal government; it’s also meant to ensure that individual privacy and government secrets are protected. To use it, any Canadian can file a formal request to departments spelling out the information they want. Government workers then collect the information, check that it doesn’t violate a list of exemptions, and release it. Fees are sometimes charged for labour.
Earlier this month, federal information commissioner Suzanne Legault issued a report calling for a sweeping overhaul of the act. One of her recommendations is that routine procedural documents should be handed over without a requiring a formal Access to Information request, said Nancy Bélanger, a lawyer for the Legault’s office.
The act has been widely criticized by Legault and other experts for allowing government departments to unfairly delay the release of information, for not giving Legault’s office enough power to enforce the rules of the act, and for not covering new communication technology such as texting and instant messaging. Some have also suggested the fees charged to consumers for data searches are prohibitive.
Bélanger said that Justice Harrington’s decision will help reduce the “culture of delay” that characterizes the government’s use of access laws.
Access to information expert Ken Rubin agreed, but he added that court cases arguing the semantics of an outdated act are a waste of taxpayer time and money.
“Just get on with opening up and rewriting the act itself. I want to see more basic challenges (to the act) and more basic resolution to these issues,” he said.
The government has 30 days to decide whether to appeal the ruling and is reviewing Harrington’s decision in order to determine the most appropriate next steps, according to a spokesman from the Attorney General’s office.