In an important decision for public bodies, a recent Information and Privacy Commissioner decision upheld a fee estimate for the search and redactions of electronic information.
In this case, the requester sought access to “… all records regarding two aboriginal children refusing chemotherapy at McMaster Children’s Hospital and the resulting Ontario court family division case between Hamilton Health Sciences and Brant Child and Family Services including but not limited to records regarding the Nov. 14, 2014 decision and April 24, 2015 clarification.” The requester later clarified that this request did not extend to clinical records or records subject to solicitor-client privilege.
Hamilton Health Sciences (“HHS”) provided a $4,800 fee estimate for an access request under the Freedom of Information and Protection of Privacy Act (“FIPPA”). The fee estimate was based on a review of a representative sample of responsive records. The estimate was comprised of 20 hours of manual search time, printing and copying 3,500 pages, and 117 hours for redactions (at a rate of 30 pages per hour). Despite the fact that the fee estimate waived 80% of the estimated search time, the requester appealed.
The only issue in the appeal was whether the fee estimate should be upheld.
HHS submitted that the broad access request required significant search time to locate responsive records. The search extended to emails of former staff members and archived records, which required the assistance of HHS’ information technology staff. Further, HHS generally avoids using patient names in email correspondence, so HHS employed an iterative process to develop appropriate keywords. This involved running keyword searches, reviewing the results of the searches for responsive documents, refining the keywords, and again reviewing the results for responsive records.
Adding additional cost to the access request was the fact that any responsive record would contain at least some Personal Health Information, which required redaction. There were also other FIPPA exclusions and exemptions that applied to the responsive records, including privileged information, advice or recommendations, personal information, and third party information.
In response, the requester submitted that the matter was of public importance, that the fee was excessive and created a barrier to access, and that the request was for “easily electronically searchable emails and attachments”.
Adjudicator Steven Faughnan agreed with HHS that the request was extremely broad. He found that HHS provided sufficient evidence to substantiate the estimated search time, that it properly sought the advice of individuals familiar with the subject matter of the request, and that it properly considered a representative sample of records. Citing Orders PO-3375 and PO-3379, he concluded that “[w]here a request is broad and involves records that are likely to be dispersed through an institution, high search and preparation fees may apply”.
This decision recognizes the complexity of searching for electronic information and the requirements to redact personal and sensitive information.
