CBRM Told To Waive $4K FOIPOP Fee

In a decision released Tuesday, Nova Scotia’s Information and Privacy Commissioner Tricia Ralph says the CBRM did not fairly calculate the fee it proposed to charge a citizen for a port-related access to information request and recommends the municipality waive the fee and release the documents.

Tricia Ralph

Tricia Ralph

This story began in March 2016, when Sydney lawyer Guy LaFosse submitted an access to information request to the CBRM on behalf of an unnamed citizen (who remains unnamed to this day, all I can tell you is that it is not LaFosse, it is not me and it is not former CBRM economic development manager John Whalley, so that’s three of 94,285 people ruled out — if this were an Agatha Christie novel, Poirot would have to assemble the suspects in the Rose Bowl stadium).

It was, as I reported at the time, a “whopper” of a request. The citizen:

…wanted to know more about the expenses of Mayor Cecil Clarke, Port CEO Marlene Usher, CBRM Chief Administrative Officer Michael Merritt, the mayor’s executive assistant Mark Bettens and his communications person Christina Lamey.

The Citizen was also curious about the processes by which Bettens, Lamey, Merritt and Usher were hired. (Of the four, only Merritt was actually required to apply for his job, which, as I write it, reminds me again how utterly amazing that is.)

The Citizen also wanted to know if the CBRM had made any payments to Harbor Port Development Partners (HPDP) or the Chinese Communications Construction Company (CCCC). And The Citizen was really interested in the financial relationships between the CBRM, Business Cape Breton and the Port of Sydney Development Corporation.

CBRM Municipal Clerk Deborah Campbell-Ryan responded, telling LaFosse she’d consulted with “various CBRM Departments” for an estimate of the time required to retrieve and review and redact the requested information and — at $30/hour with the exception of the first two hours, which are free — plus shipping and handling and photocopying costs (because electronic documents, you’ll recall, did not exist in 2016) the total came to:

$42,804.50

A total Ralph characterized as, to her knowledge, “the highest fee estimate ever issued in the history of this province.” (CBRM FTW!)

Moreover, half of this — $21,402.25 — would be required up front before work on the file would even begin.

On behalf of his client, LaFosse appealed to the Office of the Information and Privacy Commissioner (OIPC), requesting the CBRM waive the fee entirely. As Ralph wrote in her decision on Tuesday:

Throughout the review process, the applicant reduced the scope of the access request, the CBRM reduced the fee estimate to $3,859.20 and declined to waive the fee. This did not resolve the matter. As such, this file was forwarded to me to complete a review report.

 

21-03 2021 02 23 Review Report App

 

Three Issues

Ralph said the case raised three issues:

excerpt NS OIPC decision

 

You can read the decision to see the detailed responses, but the Coles Notes version is that Ralph found the CBRM’s fee estimate — even once reduced by 90% — remained “inflated.”

The reason the estimate is inflated is that the time the CBRM estimated it would take to retrieve and review the information was inflated.

Ralph said the CBRM estimated it would take 3 minutes per page to review an estimated 471 pages to determine whether anything needed to be redacted. But the OIPC’s guidelines state it should take 30 seconds to review the least complex documents and 2 minutes to review the most complex:

In this case, most of the records are expense reports from SAP [accounting system] that are unlikely to contain any information that would be subject to an exemption…In any event, an estimate of 3 minutes per page to review all the records is too high.

She also raised concerns about the estimate given by the CBRM Finance Department for compiling requested documents — it said it would take 101 hours to produce 403 pages of financial records.

Ralph said the Department of Finance claimed that a search for an employee’s expenses for one month “for the most complex aspect of the requested records” took 2 hours and, when “additional steps” were added, the total reached 3.5 hours.

Ralph was “not able to deduce” how the CBRM got from 3.5 hours to 101 hours but:

In any event, I question the choice to use the most complex sample and average it to the rest of the searches that would be required as this would naturally increase the time estimate. Furthermore, in my view, an estimate of 3.5 hours to retrieve one month of expenses for one municipality employee is on its face simply too long….Alternatively, it is indicative of poor record keeping.

Ralph noted that a municipality is not permitted to charge an applicant for delays related to its own poor record keeping.

An OIPC investigator suggested an alternative estimate: one day (7 hours) for each of the 4 years of requested financial information for a total of 28 hours but the CBRM was having none of it and actually invited the investigator to come to the Civic Centre for “a demonstration of SAP and its searching capabilities.” Sadly, the invitation was declined (the OIPC receives representations in written form only) so we weren’t treated, in these pages, to a description of the SAP system in action.

Ralph also noted that the CBRM did not supply her office with a representative sample of all the types of documents requested by the applicant — expense reports, contracts, email correspondence — instead sending along one page produced by SAP.

In the end, she ruled the CBRM did not calculate the fee fairly and accurately in accordance with s. 471 of the MGA.

 

Openly, accurately

Because the CBRM failed to make “every reasonable effort to ensure the fee calculation” was “accurate,” Ralph also ruled the municipality had failed to respond to the applicant “openly, accurately and completely” as required by s. 467 of the MGA.

 

Public Interest

Answering the third question about whether the CBRM properly exercised its discretion in deciding not to waive the fee takes up much of the 20-page decision and is worth reading in its entirety, if only to familiarize yourself with the definition of “public interest.”

The applicant argued the fee should be waived both because he (the pronoun used by the commissioner) couldn’t afford it and because it was in the public’s interest to release the information.

In the first instance, the CBRM took the rather odd tack of insisting that since the applicant was anonymous it was his lawyer’s ability to pay that must be (and wasn’t) proved. Ralph didn’t engage with this, but did agree that the applicant had failed to prove an inability to pay.

The question of public interest is more complicated and involved a four-step test from which the CBRM and the applicant emerged tied, but which ended with Ralph ruling the public interest argument did not apply.

All seemed lost at that point, but Ralph then considered “fee waivers for any other reason it is fair to do so, citing a number of factors that may be considered in assessing “fairness,” both from the Ontario Privacy Commissioner and from review reports out of Nova Scotia.

In the end, she decided that while the CBRM took a number of “positive steps” during the review, it did not meet its duty to assist the applicant, and here she cited a memo the CBRM sent the the OIPC in November 2016, after refusing to waive the reduced fee. In it, the CBRM set out the following reasons for refusing the waiver:

  • the scope of the request was “tremendous” with no effort by the applicant to reduce the scope;
  • the cost of staff and time and materials would be significant and the fee would cover only a small portion of it;
  • the request was “unreasonable” and would cost CBRM taxpayers significant dollars;
  • the documents requested required a careful and legal review;
  • the request was similar to other requests where they’d ended up redacting almost everything;
  • it was not in the public interest to disclose the documents.

After pointing out that the question of “public interest” was to be determined by the four-step test mentioned above, Ralph said:

Aside from assessing the applicant’s willingness to narrow the scope, none of the factors outlined in the memo should have been considered by the CBRM as relevant factors. A municipality should not be refusing to waive the fee because the work required to retrieve and apply redactions to requested records would consume too many resources. Nor should a fee waiver be denied because the municipality ultimately many not disclose the records due to the application of an exemption under the MGA.

This means the CBRM either does not understand the principals guiding access to information or (my theory) honestly believes financial concerns trump everything else.

Ralph ended by ruling the fee was not calculated fairly and accurately and the CBRM’s refusal to waive it was not fair, and ordered the municipality to waive the fee and produce the documents within 45 days.

Ball’s in the CBRM’s court now…