By now, it’s pretty much common knowledge that you can (attempt to) request information from government agencies and offices under the various Freedom of Information Acts or Access to Information Acts across the country. In BC, we have the Freedom of Information and Protection of Privacy Act that sets out the rules and procedures as to how we do that.
However, while you can certainly request information from the government, they don’t always have to release it – and when they do, they can charge you. A lot. $30 per hour spent finding the documents you request, $16.50 per minute of use of the ‘central mainframe computer,’ $0.25 per page, and so on.
But interestingly, the Freedom of Information and Protection of Privacy Act allows for the fees to be waived, if the request “relates to a matter of public interest.”
And at the same time, the BC government has committed to publishing most (but not all) FOI request results online at www.openinfo.gov.bc.ca, because, in the words of the premier:
“Open government is about sharing information and giving British Columbians more opportunities to participate in decisions that make a difference in their lives.”
Definitely sounds like a matter of public interest to me.
So here’s a question that comes to mind:
- The government can charge you fees for Freedom of Information Act Requests.
- Fees can be waived for records that relate to matters of public interest.
- The government, perhaps with the public interest in mind, publishes most Freedom of Information Act requests online.
- Could it be argued that all Freedom of Information Act published by the BC Government should automatically have their fees waived, since they’ve been released in what appears to be the public interest?
In case law (decisions from the Office of the Information and Privacy Commissioner), there is a test that determines whether or not something is a matter of public interest and can have fees waived. This is the analytical framework at play (with some important bits underlined, emphasis mine):
1. The head of the Ministry must examine the requested records and decide whether they relate to a matter of public interest (a matter of public interest may be an environmental or public health or safety matter, but matters of public interest are not restricted to those kinds of matters). The following factors should be considered in making this decision:
(a) has the subject of the records been a matter of recent public debate?
(b) does the subject of the records relate directly to the environment, public health, or safety?
(c) could dissemination or use of the information in the records reasonably be expected to yield a public benefit by:
(i) disclosing an environmental concern or a public health or safety concern?;
(ii) contributing to the development or public understanding of, or debate on, an important environmental or public health or safety issue?; or
(iii) contributing to public understanding of, or debate on, an important policy, law, program, or service?;
(d) do the records disclose how the Ministry is allocating financial or other resources?
2. If the head of a Ministry, as a result of the analysis outlined in paragraph 1, decides the records relate to a matter of public interest, the head must still decide whether the applicant should be excused from paying all or part of the estimated fee. In making this decision, the head should focus on who the applicant is and on the purpose for which the applicant made the request. The following factors should be considered in doing this:
(a) is the applicant’s primary purpose for making the request to use or disseminate the information in a way that can be reasonably be expected to benefit the public or is the primary purpose to serve a private interest?
(b) is the applicant able to disseminate the information to the public?
In this case, I would argue that the government’s decision to create the OpenInfo website signals that any FOI result it intends to publish on the website is a matter of public interest under part 1(c)(iii) of the test, because, as Christy Clark herself says, it’s about “sharing information” and giving BC residents a chance to “participate” in decisions about their lives.
Part 1(a) of the test is slightly sticky, and I don’t think that it captures investigative journalism or advocacy; here, a group could be exploring an issue that they want to be a matter of public debate, and FOI material could enable it to become one – and I would argue then, that ex post facto, the matter would become a matter of public interest, though it may not have been when the record was first sought. Perhaps that part needs updating.
Regardless, I would argue that the publishing of FOI results online is an acknowledgement by the government that government information and documents are matters of public interest, and that fes should be waived, because, as the OpenInfo website itself says:
[It is about] proactively working to provide citizens with access to the information that matters most to them – no closed doors or hidden agendas. It’s felt that this candid disclosure will create opportunities for citizens to participate in government and collaborate on decisions being made.
If a blogger or journalist were pursuing a story and wanted to disseminate to the public the results of the FOI request on a website, through a public campaign, or a media story, the second part of the test would arguably be met as well.
I should note, of course, that I am not a lawyer and that this is not legal advice – just strategic FOI fees appealing advice.