Adjudication Order No. 2 - Summary
DATE: May 24, 2002
PUBLIC BODY: Alberta Justice
FOIP REQUEST: Mr. Hugh MacDonald, MLA, requested access to records related to the Alberta Risk Management Fund's reimbursement of legal and other expenses incurred by Stockwell Day. A reporter at the Globe and Mail made two access requests for similar information. Justice requested fees totaling $120,267 for processing the three access requests. The applicants each requested a waiver of the fees on the basis that the records relate to a matter of public interest. The fee waiver requests were refused. The applicants asked the Information and Privacy Commissioner to review the matter. The Commissioner considered that he had a conflict and the Lieutenant Governor in Council appointed Justice T. F. McMahon as an adjudicator pursuant to section 75 of the FOIP Act.
ISSUES: Justice argued that the adjudicator lacked the jurisdiction to undertake a review of the fee waiver request made by the Globe and Mail, because the Globe and Mail never made a written fee waiver request to the department. The Globe and Mail submitted that the request was made orally during a telephone call. Justice further argued that the Adjudicator's authority in any review did not extend to a fresh decision on the waiver requests. The parties presented differing views on the merits of the fee waiver request.
DECISION AND REASONS:
- Because the two requests for fee waivers related to the same subject matter, the Adjudicator decided to consider the applicants' requests for review together.
- The Adjudicator rejected the argument put forward by Justice that the Globe and Mail never delivered a fee waiver request to them, and that there was therefore no decision to review. He found that the Globe and Mail made an oral fee waiver request and that the request was rejected. The Adjudicator decided that it can be inferred from section 11 that the time limit for responding to a request requires a public body to respond to a fee waiver request within 30 days after having received it, or within any extension of that period of time. On the basis of his finding that there was a decision on a fee waiver request, the Adjudicator ruled that he had the jurisdiction to proceed with a review of the matter.
- The Adjudicator ruled that his authority (under section 72(3)(c)) was not limited to a review of the exercise of the public body's discretion.
- The Adjudicator decided that the fees other than the initial fee should be reduced, since the matter was one of public interest and disclosure of the requested records would be of benefit to the Alberta public in pursuit of openness and accountability in government affairs and the management of public funds.
- In reaching this decision, the Adjudicator applied the criteria presented in Order 96-002. He found that MLAs and the commercial media have important roles in ensuring government accountability. He also found that the selective release of fifteen documents by Justice was not sufficient to meet the public interest and to contribute to an understanding of the issues. In considering whether waiver of the fee would shift an unreasonable burden of the cost to the public body, the Adjudicator considered whose interests were being served by the request and concluded that, when the beneficiaries of the release of records of public interest are the public at large, then the public purse should primarily bear the costs.
The fees were reduced for Mr. MacDonald from $59,571 to $500, and for the Globe and Mail from $60,696 to $2,500.