PIPEDA Case Summary #2006-354

Fees for access questioned

[Principles 4.9 and 4.9.4; and subsections 8(6)(a) and (b)]

A lawyer complained to the Office of the Privacy Commissioner of Canada about the fees being charged by a company to obtain a copy of his client’s file. The fees in question covered photocopying charges and a file storage fee. The Assistant Privacy Commissioner expressed some concern regarding these fees, notably the storage fee, which she felt an individual should not be required to pay in order to obtain access to his or her personal information. She made three recommendations to the company, which it agreed to follow.

The following is a detailed overview of the investigation and findings.

Summary of Investigation

The lawyer wrote to the company to request a copy of his client’s file. He received a response, informing him that in order to obtain the file, he would have to pay $245. The lawyer wrote again to the company and referred to the Act and the fact that his client was unable to pay this expense. The company remained firm and insisted on charging the fee.

The company informed the Office that it was prepared to produce copies of the client’s entire file, but that there were costs associated with obtaining the file from storage ($20) and photocopying ($225). With respect to the photocopying fees, the company indicated that it was charging $0.20 per page, and that the information requested contained over 1000 pages. As for the storage fee, the company explained that it had a contract with a third party to store its files after they have been closed. These files are then kept for seven years. The company stated that in order to retrieve the file in question, the lawyer’s client would have to pay the fee.

Findings

Issued October 25, 2006

Application: Principles 4.9 and 4.9.4, and paragraphs 8(6)(a) and (b). Principle 4.9 stipulates that upon request, an individual shall be informed of the existence, use, disclosure of his or her personal information and shall be given access to that information; Principle 4.9.4 states that an organization shall respond to an individual’s request within a reasonable time and at minimal or no cost to the individual; and paragraphs 8(6)(a) and (b) state that an organization may respond to an individual’s request at a cost to the individual only if the organization has informed the individual of the approximate cost; and the individual has advised that the request is not being withdrawn.

In making her determinations, the Assistant Commissioner deliberated as follows:

• In keeping with paragraphs 8(6)(a) and (b), the company informed the lawyer of the cost of obtaining the copies and waited for an agreement to pay before providing copies. The question, however, in this case, was whether the fee that the company was proposing was in keeping with the Act.
• In past cases concerning fees, the Office has always noted that while Principle 4.9.4 does not define the term “minimal,” it is followed by the phrase “or no cost.” This would imply that any fee charged should be a token one.
• The Assistant Commissioner also noted that the Act does not oblige an organization to provide copies of personal information; rather, it requires organizations to provide access to personal information.
• She reviewed photocopying fees recommended by other government organizations and noted that $0.20 a page, which was the fee the company was proposing, was equal to these. She was therefore prepared to accept such a fee.
• However, the Assistant Commissioner urged the organization to explore other, less costly options in providing access. For example, it could allow the lawyer (or his client) to view the file to determine which documents should be copied.
• As for the cost for storage, she felt that such a cost should not be included in the fee the company was proposing. File storage is the company’s responsibility. If the company chooses to contract a third party to store its files, the client should not be requested to pay for it when requesting access to his or her personal information.
• The Assistant Commissioner recommended that the company cease charging the $20 storage fee for individuals who make requests for access to their personal information, and that the company make it clear to individuals that it will provide access to their personal information but that if they want copies of their files, they will have to pay a photocopying fee. She also recommended that the company allow the lawyer or his client to view the file in question and determine which documents should be copied.
• The company agreed to implement the Assistant Commissioner’s recommendations.

The Assistant Commissioner concluded that the complaint was well-founded and resolved.