Baird’s office says user fees will continue

Defies information commissioner’s ruling

OTTAWA — Foreign Affairs Minister John Baird is flouting demands from the federal information commissioner that his department stop charging fees for access- to- information requests.

Information Commissioner Suzanne Legault said trading cash for information is not the way it’s supposed to work but she has no plans to challenge the ruling in court.

“Fees must not constitute a barrier to access,” the commissioner wrote in her final ruling on the matter. “I recommend that the minister direct his officials to cease charging fees for search and preparation time of electronic records.”

But Baird representative Joseph Lavoie said the department has no intention of changing its fee structure for access requests. “Until such time as the fee regime is modernized, the minister supports the department’s view that the correct interpretation of the regulations authorizes the current practice,” he said.

The minister’s refusal to stop charging access to information user fees raises serious questions about the potency of the Information Commissioner’s office, which appears powerless to enforce its will.

Ottawa journalist David Akin — who was working at the time for what is now Postmedia News — complained about ATIP user fees to the Information Commissioner’s office in 2009, and Legault began an investigation that was concluded last week.

Akin complained the department uses arbitrary and expensive fees as a barrier for accessing documents detailing government policies and decision- making.

His complaint came after the department began charging automatic fees in 2008 for requests that exceeded 500 pages of documents.

“There’s no justification,” said Akin. “They just picked the number out of thin air. The law says the default ought to be to make records available, not to find ways to prevent people from getting records.”

According to Akin, Foreign Affairs is the only federal department that charges automatic user fees. Foreign Affairs claims other departments charge such fees as well.

In her ruling, Legault called the automatic fees “arbitrary” and “inconsistent with the aims” of the access law.

Despite the ruling, the information’s commissioner’s office is toothless in the face of Baird’s defiance, as it lacks the power to force the release of documents or change policy in any government department.

The next step for the complaint is Federal Court, where Legault’s ruling can be enforced after a judicial review. This process can take years and cost thousands of dollars, and Akin said he’s not certain he will pursue the case. Legault also has the power to appeal, but she says there’s no point in going to court.

The case is a rare example of a minister openly defying the information commissioner’s authority.