The Truth Shall Set You Back a Fee – The Impacts of British Columbia’s $10 Application Fee for Freedom of Information Request, Two Years Later

by Luke Conkin, winner of the 2024 Privacy and Access Law Section Student Essay Contest

Abstract: Access to Information (ATI) is a vital democratic right that promotes transparency and accountability in governance. In October 2021, British Columbia (BC) initially proposed a $25 application fee for general freedom of information (FOI) requests, later reduced to $10. This paper argues that while the fee has helped the provincial government achieve its goals in revamping the FOI system, the trade-offs required by British Columbians raise significant concerns about its impact on the legal system and British Columbians’ “Right to Know”. The paper is structured into five sections: an introduction to FOI requests and their functioning in BC, an examination of the BC government’s rationale for the fee, an analysis of the fee’s effects on FOI requests within BC, a cross-jurisdictional comparison with other Canadian provinces, and an assessment of the implications for all parties involved, especially concerning the FOI system.

1: INTRODUCTION

A: PURPOSE OF THIS PAPER

Access to Information (“ATI”) is a fundamental democratic right that ensures greater transparency and accountability in governance.¹ Since the 1970s, Canadians have exercised this right through the use of ATI or Freedom of Information (“FOI”) requests, authorized by provincial or federal statutes.² ATI requests range from individuals seeking their medical records to the media keeping the public informed on government operations and decision-making. It is a long-standing convention that barriers placed on ATI by the government and related entities should be minimal and directed towards various matters including preserving individuals’ privacy and state security.³

Following the introduction of Bill 22 in October 2021, British Columbia (“BC”) proposed a $25 application fee for non-personal (i.e. general) FOI requests.⁴ This fee increase was later adjusted to $10 due to a combination of public backlash and recommendations made by the BC Office of the Information and Privacy Commissioner (“BC OIPC”). The adjusted fee came into effect on November 25^th, 2021. This paper argues the application fee has played a pivotal role in greatly reducing the number of general information requests submitted in BC, enabling the Ministry of Citizens’ Services (“MCS”) and, more specifically, the Corporate Information & Records Management Office (“CIRMO”) to dedicate more of their time and resources to reducing the current backlog of overdue requests and completing new FOI requests more efficiently. However, this paper also argues the inherently deterrent nature of the application fee has contributed to reducing government transparency and accountability, placing a barrier to access on general information requests, discouraging investigative work, and fostering selective scrutiny by those who can afford the fees. Therefore, FOIPPA should be further reformed to consider additional exemptions based on the financial or legal circumstances of a particular applicant before prescribing any fees, whether application fees or otherwise, similar to the exemptions granted to Indigenous Governing Entities.

Section 1 reviews what ATI/FOI requests are, how they work in BC and other Canadian jurisdictions, plus the role of application fees in the process. Section 2 examines the BC government’s arguments for introducing an application fee, potential ulterior motives, and the data support from BC’s FOI system. Section 3 offers a comparative analysis between BC’s FOI system and those of the federal government, other provinces, and territories. Section 4 discusses what progress, if any, the BC government has made towards achieving the goals they set out for themselves when first introducing this application fee. Finally, Section 5 discusses the important results lawyers, academics, and other interested Canadians should take away from this recent development to BC’s FOI system. It will also make a few suggestions considering some persuasive counterarguments made by interested parties over the last three years.

B: WHAT ARE ATI/FOI REQUESTS?

An ATI/FOI request is the formal means of requesting records from a public body.⁵ In BC, a “public body” means (i) a ministry or department of the government; (ii) an agency, board, commission, corporation, office, or other body designated in ATI/FOI legislation; or (iii) a local public body, though this may vary depending on the jurisdiction.⁶ FOI requests are further divided into personal and general requests. Personal requests refer to instances where individuals seek access to information about themselves maintained by government entities (e.g., records related to child welfare, financial assistance programs, or personal health data), while general requests refer to applications for all other government business/information (e.g., briefing notes, schedules, or department reports).⁷

I) FREEDOM OF INFORMATION IN BRITISH COLUMBIA

In 1993, BC introduced the Freedom of Information and Protection of Privacy Act, [RSBC 1996] Chapter 165 (“FOIPPA” or “Act”), in response to outcry over the Social Credit government’s reluctance to release flight logs regarding use of the government airplane fleet.⁸ The Act defines who can make FOI requests, that the Act applies to records held by a “public body,” and establishes an appeals body in the BC OIPC, which independently oversees and enforces FOIPPA.⁹ Initially, a “public body” concerned a ministry or department of the government and an agency, board, commission, corporation, office, or other body designated in FOIPPA.¹⁰ This definition of a “public body” was expanded to include local government bodies (e.g., municipalities) in 1994 and self-governing professional bodies (e.g., Law Society of BC) in 1995.¹¹ The office of a person who is a member or officer of the Legislative Assembly, or the Court of Appeal, Supreme Court or Provincial Court are not considered “public bodies” by the Act.¹²

Since its implementation, FOIPPA has undergone many legislative changes, totaling at least 96 amendments prior to the 2021 changes.¹³ Many of these changes stem from recommendations made out in public reports compiled by a Special Committee of the Legislature, which is statutorily required to review FOIPPA at least once every six years.¹⁴ The MCS and the Information Access Operations (“IAO”) Branch of CIRMO are responsible for implementing these changes, as well as the overall management and modernization of FOIPPA and the province’s FOI system.¹⁵ This includes the processing of requests received by all the province’s various ministries, the development of the government’s FOI strategies or policies and preparing the annual FOIPPA Report, amongst many other responsibilities. As characterized by the MCS, BC has developed “an active and informed stakeholder community that makes more requests per capita than Alberta, Saskatchewan[,] and Manitoba combined.”¹⁶

II) THE IMPORTANCE OF ACCESS TO INFORMATION

“Scientia potentia est,” – knowledge is power. Having access to government information databases is an important means for the general public to keep governments accountable, transparent in their practices or operations, free from corruption, and trustworthy.¹⁷ The Supreme Court of Canada (“SCC”) has recognized the importance of our ATI/FOI laws, considering them as “quasi-constitutional” in nature, nearly akin in status to rights found in the “Charter of Rights and Freedoms”.¹⁸ Having a properly functioning FOI system is particularly pressing in the Information Age, where one is expected to sift effectively through the overwhelming deluge of information that constitutes the Internet. However, many journalists critique governments for hiding behind bureaucracy and veils of secrecy, with a lack of consequences providing little incentive for them to be more transparent.¹⁹

Moreover, ATI serves an important role in uncovering news stories across various sectors, bringing important matters to light that would not have been otherwise revealed. The abuse of Afghan detainees by the Canadian Armed Forces, the tainted blood scandal that gave rise to the Krevier Inquiry, the advertising expenditures that transformed into the Sponsorship Scandal – ATI played at least some role in generating public attention in each of those stories.²⁰ Given the influential role ATI plays in our modern political and social discourse, control of the narrative – whether it be through what information is released voluntarily or restrictions/ deterrents placed on ATI requests – is paramount. Therefore, government attempts at manipulating the narrative, such as application fees on FOI requests, should be met with intense public scrutiny.

III) THE ROLE OF FEES IN THE FOI PROCESS

One such means of shaping the FOI process is through fees, particularly application fees. While funded primarily through taxpayer dollars, the operation and services conducted by Canada’s various FOI systems may also incur additional costs while processing FOI requests. Fees allow governments to pass on operational costs to the requestor. In BC, prescribed fees may be applied to a requestor for locating and retrieving the record; producing the record; preparing the record for disclosure, except for time spent severing information from the record; shipping and handling the record; and providing a copy of the record.²¹ Schedule 1 of Regulation 13 to the “Freedom of Information and Protection of Privacy Regulation” in FOIPPA details the specific fees one could incur from submitting an FOI request.²²

Application fees can be imposed for a variety of reasons, including, but not limited to: ascertaining the identity of the requestor; discouraging frivolous or vexatious requests; discouraging request splitting or encouraging specific requests; discouraging abandonment of requests; and better allocation of resources.²³ The reasons as to why an application fee could have these effects compared to any processing or research fees is simple: once an unavoidable, upfront fee is attached to a process, applicants become more aware of the cost-benefit analysis of submitting a request and will use their resources more carefully.²⁴ While this same effect could be achieved through a cost estimate of subsequent processing and research fees, there is a rationale behind the phenomenon where even a nominal fee of $1 for purchasing an application on smartphones causes some individuals to reconsider their options.

2: BC INTRODUCES $10 APPLICATION FEE

A: BILL 22 – BACKGROUND/CONTEXT

On October 18^th, 2021, the Freedom of Information and Protection of Privacy Amendment Act, 2021, better known as Bill 22, was introduced in the BC Legislature for first reading.²⁵ Bill 22 proposed many changes to FOIPPA, including which government entities would be subject to FOI obligations, new kinds of exceptions and refusals for certain kinds of records, and stronger sanctions for those who obstruct freedom of information.²⁶ The most important procedural change was an increase in the application fee for general requests – previously free – to $25. However, during the course of legislative debates, the application fee was lowered from $25 to $10 and an exemption for Indigenous Governing Entities. Finally, Bill 22 was given Royal Ascent on November 25^th, 2021.²⁷

B: PURPOSE OF APPLICATION FEE

According to the MCS, the changes to FOIPPA were made with the intention of:

“bring[ing] B.C. in line with other Canadian jurisdictions that also have an application fee. Those making personal requests will continue to pay no fee at all. B.C. receives among the highest volumes of FOI requests in Canada with over 10,000 requests annually. This volume increased by more than 40% between 2018 and 2020. And while work is being done to modernize and streamline the FOI system, stakeholders have told government they are not getting their information fast enough. This is mostly because of overly broad requests that are slowing down the system.”²⁸

This government statement advances three claims to support the introduction of the application fee – namely, that they will: (i) bring BC in line with other Canadian jurisdictions which also have an application fee; (ii) deter overly broad requests (which place an undue burden on the system); and (iii) contribute towards the modernization and streamlining of the province’s FOI system.

I) BRINGING BC IN LINE WITH OTHER CANADIAN JURISDICTIONS

Non-refundable application fees for general FOI requests are nothing new in Canada. Before BC decided to institute its own application fee, seven of the 13 other Canadian jurisdictions (federal, provinces, and territories) had application fees, with the federal government being the most recent jurisdiction to adopt an application fee in 2019.²⁹ Yet, even after BC joined the fold, the number remained at seven of 14 out of all Canadian jurisdictions (BC, federal, provinces, and territories), with the Northwest Territories having repealed their application fee (which was $25) in March 2019.³⁰ Moreover, most of the jurisdictions which do have an application fee charge only $5 (Canada, Ontario, PEI, and Nova Scotia), while the other two charge $25 (Alberta and Nunavut), making BC an outlier in both respects (see Table 2.1 below).

Another important distinction to make is how these jurisdictions introduced their application fees in the first place. BC and the federal government find themselves as the odd ones out, with most (five) other fee-adherent jurisdictions having an application fee since the enactment of their specific FOI legislation.³² In other words, BC’s introduction of their application fee makes them only marginally in line with other Canadian jurisdictions which have application fees.

II) DETERRING OVERLY BROAD REQUESTS

Prior to the BC government’s decision to introduce an application fee for FOI requests in November 2021, the province had seen a steady increase in the number of FOI requests since around 2015/2016. Following the 2017 BC Provincial Election and the change of political parties in power, these number skyrocketed, peaking at 13,055 total requests received in 2019/2020 – a nearly 57% increase since 2015/2016.³³ More specifically, the number of general requests, which closely mirrored the number of personal requests made out to provincial entities for nearly six years, jumped significantly in 2018/2019, peaking at 8,147 in 2019/2020, marking a ~65% increased since 2015/2016 (4,932).³⁴ By contrast, personal requests only increased by ~14% (4,908 vs. 4,329) over the same period.³⁵

One of the best indicators for assessing the extent of this predicament is the number of cross-government requests, which are requests made out to four or more ministries.³⁶ According to the MCS, cross-government requests can have significant impacts on timeliness as searches must be conducted across multiple ministries. From 2015/2016 to its peak in 2018/2019, the number of cross-government requests increased by 55%.³⁷ This number decreased slightly over the following two years (-6.3% in 2019/2020 and -20.8% in 2020/2021) prior to the enactment of these amendments to FOIPPA in late 2021.³⁸ Even with the number of cross-government requests decreasing, they still made up over one third (~35.9%) of all general requests in 2020/2021, lending greater credence to the province’s arguments.³⁹

III) MODERNIZATION AND STREAMLINING OF THE FOI SYSTEM

Among all the goals the BC government has set for itself in amending FOIPPA, gauging how the application fee for general requests will influence the modernization and streamlining of the FOI system is the most challenging. This uncertainty is the result of a few factors, namely verifying the effectiveness of the government’s modernization initiatives independently of their own statements, and shifting transparency on the allocation of resources, funding, and staffing (e.g., number of Full-Time Employees [FTEs]), which could be used to measure this progress.

According to the 2016/2017 “Report on the Administration of the Freedom of Information and Protection of Privacy Act”, the Budget Summary for CIRMO for 2023/2024 and the BC government’s FOI Modernization Project, which launched in April 2021, CIRMO’s budget has somewhat fluctuated over the last eight years, with the budget increasing by nearly 61% from 2016/2017 to 2023/2024, though this figure is reduced to only 29% when adjusted for inflation.⁴⁰ However, these figures are contradicted by the numbers cited in the 2016/2017 Report (~$24 million annually), which could mean one of two things: (i) the 2023/2024 Budget Summary is correct and the 2016/2017 Report overinflated the estimated cost to the government of the FOI system, or (ii) the 2016/2017 Report is correct, meaning the FOI budget was reduced by more than a third (~-36.2%) between 2016/2017 and 2017/2018, that the budget has failed to keep pace with inflation and has only surpassed its 2016/2017 budget in 2023/2024.

In addition to CIRMO funding, the provincial government claims the three-year, $5.5 million FOI Modernization Project will “introduce new technology and business processes to support the large volume of requests received each year while also improving the citizen experience by making processes more transparent and easier to use.”⁴¹ Some of these modernization initiatives include a software tool to facilitate the identification and removal of duplicate records in a FOI request, an improvement to the FOI request form, and a new government FOI system pilot which will enable government ministries to manage FOI requests within a unified electronic service in partnership with the government’s FOI office.⁴² Yet, there is not a single mention of how application fees will contribute to the achievement of their objectives. Likely, this statement referred to the amendments to FOIPPA overall, but why it was included in their discussion of application fees for general requests remains unclear.

Another hurdle in attempting to evaluate the modernization and streamlining of BC’s FOI system in relation to application fees is the lack of information pertaining to funding and staffing. The last year the government published its estimates for the IAO’s FOI Budget was in 2016/2017, and even further back for the number of FTEs (2012/2013).⁴³ Currently it appears the IAO has been folded into CIRMO (since CIRMO now handles FOI requests and matters related to FOIPPA). As for staffing, the “Ministry of Citizens’ Services Fiscal 2023/24 Estimates Briefing” outlines the number of employees in the BC Public Service utilizing Virtual Private Networks at home during the pandemic and staffing levels of the Supply Service, but nothing on how many employees (full or part-time) are working with the IAO, CIRMO, or the FOI system in general.⁴⁴

The importance of these two variables (funding and staffing) from 2021 to 2024 is evident when considering them in relation to the $5.5 million Modernization Project and the accompanying technological changes to BC’s FOI system. Knowing how much of CIRMO’s budget is allocated exclusively to the IAO or the FOI system could enable the determination of whether this Modernization Project marks a significant increase to the FOI system’s funding, or whether this announcement was made while cuts were proposed to the agency and other financial inferences. Conversely, while technological advances can produce staffing efficiencies, it is unclear if resources are being better allocated, since the number of people utilizing them cannot be determined. For instance, the assertion “92% [of all] ministry employees [having] completed [the] Information Management training course” will not be as remarkable if it turns out there is only 13 FTE, with 12 having completed the training compared to 2,500 employees, with 2,300 having completed the training.⁴⁵

C: OTHER POTENTIAL MOTIVES

I) COST RECOVERY

Processing FOI requests often involves significant administrative efforts, including searching, retrieving, reviewing, and redacting information. Fees can help recoup some of the costs associated with these tasks. Moreover, the fees collected can contribute to funding the personnel required to handle FOI requests and maintain or upgrade the necessary technological infrastructure to manage and process these requests effectively. If the request involves large volumes of information or requires copies to be made, additional fees for reproduction and delivery can help in covering these specific costs. Although the total amount collected from these fees annually is likely to be ~$80,000-$90,000 (less than 0.3% of the estimated annual CIRMO budget), the provincial government may believe this is a better alternative than taking the funds directly from taxpayers (see Table 2.2 below).⁴⁶ All things considered, cost recovery from the FOI process does not appear to have been a legitimate ulterior motive for the BC government in its introduction of the application fee.

II) PARTISAN POLITICS

Another plausible reason for these fee changes to FOIPPA would be the deterrence of general information requests from political parties, particularly those in the Opposition. Following the transition of power from the 16-year incumbent BC Liberals (now BC United) to the BC New Democratic Party (“NDP”) in 2017, the overall number of general information requests increased 48% by 2019/2020, however the province’s FOI system witnessed an even more drastic rise in the number of general requests filed by political parties – a staggering 253% increase compared to before the 2017 BC Provincial Election.⁴⁸

The BC Liberals likely increased their use of FOI requests to gather information on the new government’s activities and decisions, seeking material which can be used for political leverage or critique. This may also include documents which were made while the BC Liberals were in power but can no longer access them due to them being relegated to the benches of the Official Opposition. This increase occurred while most other applicant types saw a general decrease in the number of FOI requests filed, with only individual applicants seeing a marginal increase (~12.8%).⁴⁹ To put these numbers a bit more into perspective, in 2019/2020, more than seven out of every 10 general information requests were filed by political parties.⁵⁰

In sum, these statistics present a compelling incentive for the new BC government to overhaul FOIPPA and the province’s FOI system to better control this avalanche of requests, regardless of whether the requests were made in good faith or were more frivolous in nature. This paper will now turn to our in-depth examination of BC’s FOI data, followed by a comparative analysis between BC’s FOI system and those of the federal government, other provinces, and territories.

D: BRITISH COLUMBIA – BY THE NUMBERS

The following subsections will cover five metrics for measuring the various characteristics of the province’s FOI system, with a particular emphasis on trends following the November 2021 changes to FOIPPA. The metrics are: (i) number of FOI requests (general vs. personal requests & requests received vs. requests closed); (ii) average processing time (days); (iii) overall on-time FOI request response rate (%); (iv) general information requests by applicant type; and (v) number of cross-government requests.

These metrics were selected for a few reasons. First, these metrics grant this paper the ability to better quantify the effectiveness of the FOI system (i.e. in both achieving the goals of the province’s Modernization Project and in more objective terms). Another important consideration when selecting these metrics was their potential replicability across other Canadian jurisdictions (i.e. these measurements were also tracked consistently by other jurisdictions), to ensure a more accurate cross-jurisdictional analysis. Finally, these metrics will enable a proper assessment of the effects (or lack thereof) of the introduction of the application fee to the FOI system, without requiring any consideration of the financial data. All the following data can be found in the hyperlinks provided at the bottom of each graph, accompanying endnotes for large cross-jurisdictional analysis, and attached Google Sheet.⁵¹

I) NUMBER OF FOI REQUESTS

Observing the results from Figure 2.1a (see below), from 2012/2013 to 2017/2018, the number of general and personal requests remained relatively equal, with the total number of FOI requests mirroring a similar trend over the same period. From 2017/2018 up until the November 2021 changes to FOIPPA, there is a marked increase in the number of general information requests relative to personal requests, widening until 2019/2020. This gap remains apparent up until 2021/2022, which is the first year of data collection post-FOIPPA amendments.⁵² By 2022/2023, the number of personal requests surpassed general requests for the first time since 2013/2014, with the total number of general requests having declined by 44.7% post-FOIPPA changes.

Data sourced from: Government Communications and Public Engagement, “Records released by request”, (29 November 2023), online: Province of British Columbia

In Figure 2.1b (see below), the changes in the total number of FOI requests received appear to have been largely driven by the number of general requests received from 2017/2018 up until 2022/2023, reflecting each other accordingly. Additionally, the total number of FOI requests began declining between 2019/2020 and 2020/2021, prior to any proposed changes to the FOI system were announced by the BC government. Although one cannot be certain, it would be fair to assume this may have been driven, in large part, by the COVID-19 pandemic and associated slowdowns to government activities.⁵³ Otherwise, the upward trend may have continued or declined at a more moderate pace than what is observed in Figure 2.1b.

Data sourced from: Government Communications and Public Engagement, “Records released by request”, (29 November 2023), online: Province of British Columbia

Considering the results in Figure 2.1c (see below), a greater emphasis has been placed on closing requests, particularly overdue ones compared to completing new requests on time, corroborated by statements made by the MCS in this regard.⁵⁴ This change is most apparent from 2020/2021 to 2022/2023, where the number of closed requests surpassed the total number of FOI requests received for the first time since 2016/2017, with a ratio of 1.06 requests closed per 1 request received in 2020/2021. This ratio has been maintained from 2020/2021 up to 2022/2023 (1.03:1), resulting in a smaller backlog in overdue requests, but at the expense of the province’s on-time request response rate. It could be argued application fees may have contributed to the preservation of this margin, by deterring new requests in order to allocate more resources to closing requests. It appears things had already been trending in that direction between 2018/2019 and 2019/2020, long before any changes to FOIPPA. This would indicate other potential factors at play, such as COVID-19 or other bureaucratic changes, just to name a few.

Data sourced from: Government Communications and Public Engagement, “Records released by request”, (29 November 2023), online: Province of British Columbia

II) AVERAGE PROCESSING TIME (DAYS)

Observing the results in Figure 2.2 (see below), the average processing time remained relatively stable from 2011/2012 to 2018/2019 (~43 days), but has since been steadily increasing year-over-year, peaking at 85 days in 2022/2023. Following the change in government, the Annual FOIPPA Reports have included the metric “Average Processing Time (Days, excluding requests open 1 year or more, ~95-97% of requests)” since 2017/2018. The BC government has justified its inclusion because “the processing time for responding to a request is not calculated until a request is closed”, with their “focus on closing overdue requests… negatively affect[ing] the on-time and average processing days response rate for that fiscal year”.⁵⁵ It should be mentioned that BC is not alone in adjusting the criteria for what constitutes an “on-time request,” though the extent to which this revision better reflects the realities of BC’s FOI system remains unclear.

Data sourced from: Government Communications and Public Engagement, “Records released by request”, (29 November 2023), online: Province of British Columbia

Taking this approach into account, the average processing time for all requests (excluding those open one year or more) is 38 days, having declined from an average of 45 days in 2020/2021. Another matter to consider is the total number of pages being processed as a part of these requests, having risen significantly from 2020/2021 (1.6 million, average of 146 per general request, 407 per personal request) to 2022/2023 (2.53 million, average of 317 per general request, 617 per personal request).⁵⁶

III) OVERALL ON-TIME FOI REQUEST RESPONSE RATE (%)

Considering the results from Figure 2.3 (see below), there is a general upward trend towards an improvement in the overall on-time FOI request response rate since 2005/2006, though this number has slightly decreased post-FOIPPA changes (81% à 78%). If one were to exclude those requests which the BC government elected to (i.e. excluding request open for one year or more), then the overall on-time response rate increases to 84%.⁵⁷ This is surprising, considering the increased workload the FOI system has received over the past few years, the COVID-19 pandemic, and other stressors on the FOI system. This would suggest the application fee and other changes to FOIPPA have had little to no effect on the on-time processing rate of BC’s FOI system, though this will become clearer in a few years time.

Data sourced from: Government Communications and Public Engagement, “Records released by request”, (29 November 2023), online: Province of British Columbia

IV) GENERAL INFORMATION REQUESTS BY APPLICANT TYPE

Observing the results in Figure 2.4 (see below), for nearly every year on record, political parties have submitted the most general information requests of any applicant type, followed by individual applicants and the media. 2016/2017 marked the only year where the largest applicant group was not a political party, with individuals submitting 29 more requests and the media submitting only 15 less requests than political parties. The following year, 2017/2018, was noteworthy for its spike in request made by researchers (by 829% compared to 2016/2017), much in relation to the prelude to and aftermath of the 2017 BC Provincial Election and subsequent transfer of power from the BC Liberals to the BC NDP.⁵⁸ 2018/2019 was the first full year of FOI data following the change in government, exemplified in the nearly 200% increase in general information request made out by political parties, a sharp decline in requests submitted by researchers (-90%), and all other applicant types remaining roughly the same.

Data sourced from: Government Communications and Public Engagement, “Records released by request”, (29 November 2023), online: Province of British Columbia

While the number of requests submitted by political parties (and general requests overall) peaked and subsequently declined following 2019/2020, what this paper would like to draw particular attention to is the lack of any other applicant type experiencing a similar decline until 2021/2022. From 2021/2022 to 2022/2023, not only was there a 45% decrease in the total number of general requests filed, but a major decline in requests submitted by individuals, political parties, AND the media, with all other applicant types remaining relatively unchanged. These observations present the most compelling evidence yet of the direct effects of the BC government’s introduction of the application fee influencing the province’s FOI system. This is further supported by the fact the number of requests made out by groups which can afford to pay the fee with each request (law firms, businesses, and interest groups) slightly increased post-FOIPPA changes.

One potential asterisk in attributing this great rise and fall in the number of general requests submitted by political parties to the application fee could be the involvement of a third party in the process. Following a conversation with the BC Information and Privacy Commissioner, Michael McEvoy, in January 2024, the Author of this paper has on good authority the BC Liberals outsourced their FOI requests to a third-party contractor (whose name the Author has not been able to verify). Racking up the number of FOI requests until their contract completed around sometime between 2019/2020 and 2021/2022, this company is now responsible for FOI requests submitted on behalf of the Ontario Liberal Party. This means there’s the possibility of confirming or denying the influence of this variable in determining the name of this company and if similar trends are observed in Ontario’s annual FIPPA Reports in the coming years.

V) NUMBER OF CROSS-GOVERNMENT REQUESTS

Concluding our analysis of the results from BC in Figure 2.5 (see below), it appears the number of cross-government requests has generally echoed the overall trend of the total number of general requests from 2009/2010 all the way to 2022/2023. These kinds of requests, which take a considerable amount of time and resources to fulfill, have markedly declined since 2019/2020, while attributable in part to the COVID-19 pandemic, it’s not the whole story.

Data sourced from: Government Communications and Public Engagement, “Records released by request”, (29 November 2023), online: Province of British Columbia

In 2022/2023, there were only 470 cross-government requests, a low which has not been seen since the early 2000s. The province contends that “recent FOI trends have seen applicants directing more targeted requests to specific ministries, rather than submitting broad requests to many ministries.”⁵⁹ What is subtly hidden within that explanation is the potential admission that applicants are no longer making these broad kinds of requests to all of these different ministries because there’s now a greater price to pay with each and every request. The direct result of the 2021 FOIPPA amendments, it is equally surprising the FOI system’s timeliness has not improved significantly as the result of this decline in cross-government requests.

3: CROSS-JURISDICTIONAL COMPARISON OF BC WITH NATIONAL FOI DATA

A: LIMITATIONS/CONSTRAINTS

Prior to our comparison of BC’s FOI system to other Canadian jurisdictions, this paper prefaces the following arguments with a few limitations/constraints. For one, not all jurisdictions have released their annual reports for 2022/2023 from which this paper obtained the required FOI data. Some are still being collected, others under review by various committees and in the case of Quebec, there is no central database where one could find their reports. As for the federal government, while the annual reports provided by Federal institutions are all individualized (all 195 institutions), the Treasury Board Secretariat collects and publishes statistical data about the Government of Canada’s ATI and privacy programs.⁶⁰ As with our previous section, this paper is concerned with the FOI data collected by government institutions (departments, ministries, agencies, etc.), not municipalities or other public bodies (e.g., universities, police departments). This essay is already very broad as is and the inclusion of information from those institutions would not meaningfully contribute to the development of our research analysis and arguments.

Another important qualification for this section is the differing date ranges employed by each jurisdiction, with most following the April 1^st, 202X-March 31^st, 202X+1 format, with only Ontario and PEI adhering to the January 1^st-December 31^st, 202X format. For the purposes of this essay, we will continue to use the former dating system, though we cannot guarantee this decision will not affect the overall precision of our research. Similarly, there does not appear to be a consensus on whether to use business days or regular days to calculate adherence to on-time rates and average processing time. This paper will use business days, as this is the generally accepted standard within the field. It also does not help over a third (5/14) of all jurisdictions do not adhere to the 30 business days timeframe for closing requests when determining on-time response rates (see Table 3.1 below).

Speaking of which, an additionally important matter to consider is whether to include on-time response rates or whether the requests were completed within the legislated timelines. On-time response rates refers to the percentage of FOI requests completed within the designated amount of time out of all FOI requests.⁶² Requests completed within the legislated timelines, in essence, refers to the same measurement, but distinctly includes requests which were given extensions to complete permitted by their respective ATI/FOI legislation (would have been considered overdue otherwise).⁶³ Many jurisdictions have maintained the latter approach provides a more accurate picture of their FOI system’s compliance rate, which coincidentally, always has a higher rate than the on-time response rate. Once again, this paper will be deferring to the majority (i.e. on-time response rates) on this matter, though some commentary on major differences between the two approaches will be made when applicable.

B: EACH CANADIAN JURISDICTION – BY THE NUMBERS

I) NUMBER OF REQUESTS

Observing the results from Figure 3.1a (see below), BC has received, on average, the third most FOI requests per year (excluding Quebec, which would likely come in 3rd behind the federal government and Ontario).⁶⁴ When expanding the vertical axis of Figure 3.1a, it would appear the total number of FOI requests received in most jurisdictions are increasing or remaining relatively the same. The sole jurisdiction which experienced a more than nominal decrease in requests received was BC, which occurred from 2019/2020 to 2022/2023. These FOI trends are generally paralleled in Figure 3.1b (see below), with general information requests comprising, on average, a majority of all FOI requests submitted in each respective jurisdiction (except Alberta, Nunavut and the federal government).⁶⁵

Data sourced from: See Endnote⁶⁶

Data sourced from: See Endnote⁶⁷

Turning once again to personal information requests in Figure 3.1c (see below), one does not see the trends observed with general requests reflected in personal requests, remaining relatively constant throughout the same period (apart from the federal government). The ratio of general requests to personal requests is encapsulated in Figure 3.1d (see below), with most jurisdictions hovering above or slightly below one general request per one personal request (1:1). BC is the sole jurisdiction to have crossed over from one side of the 1:1 threshold to the other throughout the observation period, shifting from receiving more general request to personal requests (1.3:1) in 2021/2022 to more personal requests than general requests (0.7:1) in 2022/2023.

Data sourced from: See Endnote⁶⁸

Data sourced from: See Endnote⁶⁹

II) AVERAGE PROCESSING TIME (DAYS)

Unfortunately, it appears BC is the lone jurisdiction which consistently collects and publishes the average processing time for completing a FOI request (general or personal), limiting greater cross-jurisdictional comparison. Nevertheless, this paper possesses ample information on the overall on-time response rate to make up for this lack of data on average processing times.

III) OVERALL ON-TIME RESPONSE RATE

Observing the results in Figure 3.3 (see below), it can be discerned BC and Newfoundland and Labrador (“NL”) have largely been the most effective at completing the FOI requests they receive by the legislated deadline (without extensions), both equally impressive in their own right. BC has been able to maintain this rate while receiving one of the largest request volumes of any jurisdiction. For NL, while processing roughly 60-80% less requests than BC, the province has been able to maintain an on-time response rate which is 10 days less than that of BC. On the other side of the equation, New Brunswick and PEI have the worst on-time response rates, though the latter has improved significantly in recent years. The most notable rises and declines in on-time response rates during the impugned period can be attributed to Saskatchewan, PEI and the Yukon, experiencing a 26% and 69% increase, and 56% decrease respectively.

Data sourced from: See Endnote⁷⁰

On a broader scale, it seems most jurisdictions are experiencing a general decline in their on-time response rates over the last six years, much of which could be attributed to the backlogs created by the COVID-19 pandemic and the increasingly complex scope of requests. In theory, an application fee should help to improve a jurisdiction’s on-time response rate by lessening their potential workload by disincentivizing the submission of applications on pain of financial burden. The fact this decline has been a general trend nation-wide even after BC introduced its application fee would, at best, lend credence to the argument the application fee’s introduction in the province diminished the blow their on-time response rate would have experienced had they decided otherwise. What is more probable is the assertion the effect of this application fee to BC’s on-time response rate has been negligible to non-existent.

IV) GENERAL INFORMATION REQUESTS BY APPLICANT TYPE

For the purposes of this section, this paper will analyze four applicant types, who have historically tendered the vast majority of ATI/FOI requests when totalled collectively, regardless of the jurisdiction: (i) individuals/general public; (ii) political parties and elected officials; (iii) the media; and (iv) businesses. Although more representative than a one-to-one jurisdictional comparison, it must be noted only eight of these jurisdictions consistently track requests by applicant type. Moreover, Ontario combines both general and personal information requests into their request totals by applicant type, meaning it may be excluded from our analysis on occasion.

Looking at the results in Figure 3.4a (see below), there are two significant trends. First, nearly all jurisdictions saw a major increase in the number of general information requests submitted by individuals/general public from 2020/2021 to 2021/2022, particularly in BC. It is plausible this notable increase is the result of requests made in connection with COVID-19-related government health measures and restrictions, though other factors may also be at play. Then, from 2021/2022 to 2022/2023, our second significant trend occurred, with a general decline mirroring the previous rise in requests, once again most prominent in BC, followed by Alberta. This may be attributable in part to the introduction of the application fee, though it was likely the fee, plus the relaxation of government-related health measures and restrictions in 2022 which caused the change.

Data sourced from: See Endnote⁷¹

Observing the results in Figure 3.4b (see below), there is one inescapable fact: political parties and elected officials in BC are inundating the province’s FOI system with general information requests. To put this more into perspective, until 2021/2022, the total number of general requests submitted by political parties and elected officials in BC was greater than the sum of all general requests submitted by political parties and elected officials in all other reporting jurisdictions. By 2022/2023, the number of requests submitted by political parties and elected officials in BC was surpassed by Alberta, marking the first instance of another jurisdiction topping BC in this metric. This sharp rise and subsequent fall up until the present, but particularly to a more reasonable level from 2021/2022 to 2022/2023 points towards our assessments of the role of BC’s application fee in influencing FOI requests being correct.

Data sourced from: See Endnote⁷²

Compared to the results in Figure 3.4c (see below), there appears to be significant parallels between these results (for media outlets) and for individual applicants/general public. For the sake of brevity, while more recent data is required to make more definitive claims, this even sharper decline in FOI request submitted by the media in BC compared to other jurisdictions further supports our position BC’s application fee has influenced the number of FOI requests submitted by media outlets.

Data sourced from: See Endnote⁷³

Contrasted with the results in Figure 3.4d (see below), there is no significant difference year-over-year in the number of general requests submitted by businesses for most jurisdictions, including BC. That being said, Alberta experienced a drastic decrease in the number of general requests submitted by businesses from 2019/2020 up until 2021/2022, which could, once again, be attributed to the COVID-19 pandemic. Like was mentioned in Section 2, this lack of any apparent change or trends to say otherwise point to our assertion BC’s application fee did not affect those who could afford to pay it, such as businesses.

Data sourced from: See Endnote⁷⁴

V) NUMBER OF CROSS-GOVERNMENT REQUESTS

Regrettably, it appears BC is the only jurisdiction which consistently collects and publishes the number of cross-government requests received per year, limiting greater cross-jurisdictional comparison on this matter.

4: DISCUSSION OF RESULTS

A: IS BC PROGRESSING TOWARDS ITS GOALS?

Taking into account our interpretation of the BC government’s goals in amending FOIPPA in light of the results from our examination of FOI data in BC, and the subsequent cross-jurisdictional analysis, the impact of the application fee on general requests is evident. By introducing its $10 application fee in November 2021, BC joined, although as an outlier, half of all Canadian jurisdictions in charging a non-refundable fee for general requests.

More prominently are the acute effects of the application fee on deterring not only frivolous and time-consuming FOI requests, but general requests overall. The correlations drawn from BC’s FOI data were already sufficient to, at the bare minimum, assert the application fee would help to continue the downward trend catalyzed by the COVID-19 pandemic. The cross-jurisdictional analysis with all other Canadian jurisdictions only served to confirm the application fee had the exact effect the provincial government wanted it to have. The unfortunate disadvantage of the detailed reporting provided in BC’s annual FOIPPA reports was the potential for replicability of certain metrics or measurements in other jurisdictions, which could have further contributed to our analysis.

BC’s post-FOIPPA amended FOI system appears more poised to pursue their priority of reducing the backlog in overdue requests as the result of this diminished stream of new requests, which should theoretically result in less days to process requests and an improved on-time processing rate. Although this paper is pretty certain of the CIRMO (and therefore FOI) budget for 2023-2024, the lack of information regarding the number of FTEs and how these modernization initiatives will help streamline their work leaves much to be desired on this matter. Cost-recuperation was never really a motivation behind the introduction of this fee, as shown by the insignificant fee collection totals compared to the FOI system’s operational costs. All things considered, the BC government is likely to be pleased with themselves, having implemented changes which contributed to their much more manageable workload and the major reduction in general requests submitted by individuals, the media, and especially political parties.

5: LESSONS AND POTENTIAL IMPLICATIONS

Now that one has a greater understanding of how the introduction of the non-refundable application fee for generation information requests and other changes to FOIPPA have affected the FOI system in BC, this paper will now consider their practical and theoretical implications on the general public, the legal profession, academics/researchers and other interested parties.

Concerning the judicial system itself, another FOIPPA amendment (ss. 65.5-65.6 and 74) strengthens the potential penalties for any ‘person’ who refuse to or otherwise obstruct the FOI process, though this does not include any substantive means to redress poor systemic performance by public authorities.⁷⁵ Moreover, it is not clear whether their definition of a ‘person’ includes members of government, including ministers and the premier, potentially securing them from liability.⁷⁶ What is clear is that this provision applies to “a corporation, partnership or party, and the personal or other legal representatives of a person to whom the context can apply according to law.”⁷⁷ Ironically, the implementation of this application fee may impact public trust in government and the civil judicial system. The public will likely perceive this fee as a barrier to ATI, leading to a decrease in trust, the invocation of cabinet/parliamentary privilege and an increase in litigation to challenge the withholding of information, potentially further clogging the judicial system.

As an indirect effect of instituting application fees for general requests, the province’s focus on reducing the backlog in overdue requests means individual applicants and lawyers alike should expect longer-than-normal processing times for their FOI requests in the short term. Even though this may lead to a significant improvement to processing times in the long term, there is the potential for this policy to incidentally slow down the progression of cases due to longer delays in acquiring relevant legal information through FOI submissions. As was observed in Subsection (IV) of our analysis of BC’s FOI data (Section 2), time, not money, will be the major concern for law firms big and small. Making less overly-broad and more targeted submissions (to a single public body) may be a viable option for getting FOI requests processed faster.

To that end, it is known FOI-obtained documents can sometimes be used as evidence in civil litigation. Having easy access to these documents can be instrumental for parties in a civil dispute, potentially influencing the outcome of the case, with this application fee making it less accessible, particularly for those coming from low-income backgrounds.⁷⁸ While this application fee could very well deter some vexatious and overly-litigious individuals from pursuing baseless civil claims, it may implant the false impression in some public bodies or more specifically the provincial government that there is a lower likelihood they will be held accountable for misconduct on their part, apart from the ballot box.

Setting aside the obvious implications this application fee has had and will continue to have on researchers and media outlets looking to access the records of public bodies, this paper would like to provide some suggestions on how future research ought to be conducted. Although there is confidence in our findings, basing much of our arguments primarily on data trends which transpired over only a two-year period, the most recent two-year period at that, leaves significant room for uncertainty. Ideally, this kind of a research paper should be replicated three years from now (i.e. five years removed from the implementation of BC’s application fee) with more applicable data from BC (i.e. FTE numbers, other financial information) other Canadian jurisdictions (particularly Quebec). By then, it should be even more apparent whether our assessment of the effects BC’s application fee on the FOI system was spot on or a single-year deviation in the grand scheme of things.

Given that the observations indicate BC is indeed progressing towards its goals according to plan, it is worthwhile to finish off this paper by judging whether this realization is good for the province and British Columbians in general before wrapping everything up. It would not be controversial to contend it is problematic for governments to make it more difficult for its citizens to exercise their right to access information, which in turn, makes them less transparent and accountable. The MCS attempts to address this concern directly in their Fiscal 2023/24 Estimates Briefing, reiterating the argument this reduction in requests (and therefore reduced workload on the FOI system), combined with more proactive disclosures (i.e. information made available to the public without an FOI request) demonstrates their government’s commitment to open and transparent government.⁷⁹ Although there is no clear common law precedent which has decreed provincial FOI legislation such as FOIPPA ought to be given the same “quasi-constitutional” recognition as the federal Access to Information Act, that should be no reason for the government to actively or incidentally infringe on that fundamental democratic right.

It must be conceded learning BC has one of the most effective and accessible FOI systems in the entire country was surprising. This insight makes it all the more disappointing the provincial government, in using the guise of modernizing and streamlining the system, were too preoccupied with deterring the mountain of requests from political parties (particularly Opposition parties) to pay attention to the considerable drawbacks to their amendments. The reduction in general information requests will likely enable CIRMO and the IAO to allocate provincial resources more effectively (particularly in their efforts at reducing backlogs). The question remains as to how long these beneficial trends will continue before many British Columbians decide the fee is worth paying to get the information they need, and this province witnesses another significant increase in the number of general information requests.

It is already known the knowledge of potential fees can deter some individuals from even beginning the ATI/FOI process, especially if they are unsure about the exact costs involved or if the information will be beneficial to them. The former could potentially be mitigated by provincially-provided cost estimators (software, over the phone or in-person) or assessments before proceeding with the process, though this still requires considerable time allocation which low-income individuals have sparce to parcel aside. It could be said every FOI request runs the gambit of obtaining irrelevant information or even coming up empty. This could then become an equity issue, where low-income applicants cannot afford to risk the mere possibility of obtaining relevant information with the certainty of paying these fees.

Some may argue that since public bodies are funded by taxpayers, information they hold should be freely accessible to the public as it’s already ‘paid for’ through taxes. Understandably, this would not apply to all public body records and the government has the important responsibilities of protecting individuals’ privacy, public safety, and security of the realm. This “public interest override” (s. 25 of FOIPPA, which was last amended in 2017), which requires the head of a public body to disclose, without delay, information about a risk of significant harm to the environment or to the health or safety or another reason clearly in the public interest.⁸⁰ With that said, there is no mechanism for sanctioning a public body and its members for their failure to disclose this information, which is not the same as a public body refusing to comply with an FOI request (as was addressed in the amendments to FOIPPA). This major oversight should have been addressed in the November 2021 amendments to FOIPPA, in the form of empowering the BC OIPC with greater enforcement powers, for example.

Aside from the general public, advocacy groups, and political parties expressing their concerns over the proposed changes, media outlets were some of the most outspoken opponents of the amendments to FOIPPA. Journalists and non-profit organizations have long used FOI requests to uncover information in the public interest, information which would have been quite challenging to acquire by other means. Once again, the BC government is hesitant regarding the conclusions (short or long-term) that can be drawn from this data, revealing that one media applicant represented 76% of all media requests prior to the introduction of the application fee, a share of requests which has since been reduced to 26% of all media requests.⁸¹ That being said, there is no doubt this application fee has and will continue to hinder investigative journalism and research, potentially keeping crucial information hidden from the public. Many independent journalists are struggling financially as is, with this application fee acting as an additional financial constraint on their line of work.⁸² This situation effectively means they will have to make the same cost-benefit analysis that low-income applicants would have to make, weighing the potential value of the story with its sunk cost.

6: CONCLUSION

In concluding this research paper, it is imperative to reflect on the progress made by the BC government towards reforming the province’s FOI system, particularly in relation to the $10 application fee introduced for general FOI requests. This fee, although still controversial, has played a significant role in shaping the dynamics of information requests within the province. It is a manifestation of the government’s commitment to balancing the need for public access to information with the pragmatic demands of managing a responsive and efficient FOI system. The introduction of the fee has led to a notable decrease in the volume of general FOI requests, suggesting a deterrence effect against frivolous or non-essential requests. This decline, while beneficial in reducing the strain on the system, raises critical questions about the impact on transparency and public engagement. The government’s effort to streamline operations and manage the inflow of requests more effectively must be carefully balanced against the fundamental democratic principle of public access to information.

The effectiveness of the FOI system is not solely determined by the volume of requests it handles but also by the quality of its responses and the timeliness with which it addresses these inquiries. The data suggests the processing times and response rates have seen some improvement, though there is still room for advancement. This improvement is a positive step towards achieving the BC government’s objective of a more efficient system, but it must be monitored to ensure it does not come at the expense of comprehensive and thorough information dissemination. Looking at the broader implications, the introduction of the application fee and other reforms have potential consequences for various stakeholders including political parties, the media, researchers, and the public. While the fee aims to curtail non-essential requests, it is crucial to ensure it does not impede serious political, journalistic, and academic endeavors which serve the public interest. The government must remain vigilant to ensure the fee structure does not become a barrier to important investigative work that holds public bodies accountable. Moreover, the fee’s impact on low-income individuals and marginalized groups deserves special attention. Access to information should not be a privilege limited to those who can afford it. The government must consider mechanisms to ensure equitable access, possibly through fee waivers or reductions for those in financial need, such as those granted to Indigenous Governing Entities.

In conclusion, while the introduction of the $10 application fee for general FOI requests in British Columbia has contributed towards certain operational efficiencies, it is a development that warrants ongoing scrutiny. The government’s responsibility to facilitate public access to information must be balanced with the practicalities of managing an effective FOI system. This balance is crucial in maintaining public trust and ensuring the FOI system continues to serve its fundamental purpose of promoting transparency and accountability in governance.

BIBLIOGRAPHY

A: CASES

Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 (CanLII), [2011] 2 SCR 306.

Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 (CanLII), [2002] 2 SCR 773

B: STATUTES AND SUBORDINATE LEGISLATION

Access to Information Act, RSC 1985, c A-1

Access to Information and Protection of Privacy Act, SNWT 1994, c 20

Freedom of Information and Protection of Privacy Act (“FOIPPA”), RSBC 1996, c 165

Freedom of Information and Protection of Privacy Regulation, BC Reg 155/2012, Schedule 1

Privacy Act, RSC 1985, c P-21

C: PRIMARY SOURCES

The Author (October 2023), Personal Communication with the BC Office of the Information and Privacy Commissioner (Christina Sefcik)

D: SECONDARY SOURCES

British Columbia, Legislative Assembly, “Official Report of the Progress of Bills” (Hansard), 42^nd Parl, 2^nd Sess (2021)

British Columbia, Ministry of Citizens’ Services, “Freedom of Information and Protection of Privacy Act: Application Fee for General Requests”, (Victoria: Information Access Operations Branch of the Ministry of Citizens’ Services, January 2022),

British Columbia, Ministry of Citizens’ Services, “Report on the administration of the Freedom of Information and Protection of Privacy Act”, 2012/2013 (Victoria: Ministry of Citizens’ Services, 2013)

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SOURCE FOR ANNUAL REPORTS BY JURISDICTION:

Federal Institutions:

Government of Canada, “Access to Information and Privacy”, (29 September 2023), online: Canada.ca.

British Columbia:

Government Communications and Public Engagement, “Records released by request”, (29 November 2023), online: Province of British Columbia

Alberta:

Government of Alberta, “Freedom of Information and Protection of Privacy : Annual Reports”, (14 July 2015), online: Freedom of information and protection of privacy : annual report – Open Government

Saskatchewan:

Government of Saskatchewan, “Annual Reports: The Freedom of Information and Protection of Privacy Act”, online: Government of Saskatchewan

Manitoba:

Government of, Manitoba, “Freedom of Information and Protection of Privacy Act”, online: Government of Manitoba

Ontario:

Information and Privacy Commissioner of Ontario, “Annual Reports”, online: IPC

Québec:

Gouvernement du Québec, “Accès à l’information/Access to Information”, online: Gouvernement du Québec

New Brunswick:

Government of New Brunswick, “Publications”, (11 May 2023), online: Right to Information

Nova Scotia:

Information Access Nova Scotia, “IAP Services Annual Reports”, online: Open Information

Prince Edward Island:

Legislative Assembly of Prince Edward Island, “Annual Reports of the Office of the Information and Privacy Commissioner”, online: Information and Privacy Commissioner | Legislative Assembly

Newfoundland and Labrador:

Access to Information and Protection of Privacy Office – Newfoundland and Labrador, “Access to Information and Protection of Privacy Act Annual Reports”, (15 September 2023), online: Access to Information and Protection of Privacy Office

Yukon:

Government of Yukon, “ATIPP Annual Reports”, online: open.yukon.ca

Northwest Territories:

Government of Northwest Territories, “ATIPP Annual Reports”, online: Department of Justice

Nunavut:

The Government of Nunavut. “ATIPP Reports”, (21 November 2023), online: Department of Executive and Intergovernmental Affairs – Access Information Division

ENDNOTES: