December 16, 2010

Chad Skelton
The Vancouver Sun
1 - 200 Granville Street
VANCOUVER BC V6C 3N3

Dear Chad Skelton:

Re: Complaint - Fees; British Columbia Ferry Services Inc. File 2010-016; OIPC Files
F10-43666; F10-43667; F10-43668; F10-43669; F10-43670; F10-43671; F10-43672;
F10-43673; F10-43670=4; F10-43675; F10-43676

On October 26, 2010, you submitted a written complaint to the Office of the Information and
Privacy Commissioner (OIPC) in which you argue British Columbia Ferries Services Inc. (BC
Ferries) incorrectly designated you as a commercial applicant.

Background
On October 1, 2010, in your capacity as a Vancouver Sun reporter, you made eleven (11)
separate requests to BC Ferries.

On October 21, 2010, BC Ferries designated you as a commercial applicant and assessed you
the actual cost to process each of your requests.

In your October 26, 2010, letter to the OIPC, you state that you contacted BC Ferries to discuss
the designation of commercial applicant. You cited BC Orders 02-43 and 03-19 to support your
contention that BC Ferries should not treat the Vancouver Sun or its journalists as commercial
applicants. You advised the OIPC that BC Ferries would not reconsider its decision to classify
you as a commercial applicant.

Issue
Is the Vancouver Sun a “commercial applicant” within the meaning of s. 1 of the Freedom of
Information and Protection of Privacy Regulations (the Regulations)?

Analysis
Section 1 of the Regulations defines commercial applicant as:

…a person who makes a request for access to a record to obtain information for use in
connection with a trade, business, profession or other venture for profit;

In Order 02-31, former Commissioner Loukidelis examined the meaning of commercial

applicant, he explained that it is the plain meaning of the Regulations’ definition, which a public
body must use when interpreting the meaning of commercial applicant. A narrow interpretation
may only consider whether the intended use of the information was for a commercial purpose, a

Mail: PO Box 9038, Stn Prov Govt, Victoria BC V8W 9A4

Location: 4th Floor, 947 Fort Street, Victoria BC
T. 250 387 5629 F. 250 387 1696
Toll free through Enquiry BC 800 663 7867 or 604 660 2421 (Vancouver)
W. www.oipc.bc.ca
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commodity to be exploited in some way for profit. Loukidelis notes that the plain meaning of
commercial applicant is broader than this narrow interpretation since it incorporates the term “in
connection with”1 a trade…or other venture for profit.

Loukidelis2 went on to say that being classified as a commercial applicant does not mean a
public body has to charge a fee or if it does the full fee for the service. Furthermore,
classification as a commercial applicant will not restrict an applicant from a request for a fee
waiver under s. 75(5) of Freedom of Information and Protection of Privacy Act (FIPPA).

Is the applicant a commercial applicant within the meaning of s. 1 of the Regulations.

You argue Orders 02-43 and 03-19 support your contention that BC Ferries should not treat
journalists as commercial applicants. I do not agree, both orders dealt with complaints related to
fee waivers. In both cases, the public body treated the journalists as commercial applicants, but
the commissioner did not make a determination on the validity of this classification. However, he
did comment that a journalist’s interest in the information requested had a commercial aspect to
it, he stated:

In my view, while the applicant’s proposed use of the information to write stories has a
commercial aspect, his intentions is evidently to disseminate the information by
publishing articles in a newspaper3.

Although the former Commissioner alluded to the fact journalism contains an element of
commercial activity, these orders did not determine if in fact journalists should or should not be
classified as commercial applicants.

The Vancouver Sun is in the media business to make a profit. Simply put, it publishes articles in
its paper, which it feels are interesting to its subscribers. It earns revenue from its subscribers
and advertisers.

You are a journalist employed by the Vancouver Sun newspaper. The intent of your access
request is to use the information to write articles for publication in the Vancouver Sun. In your
email dated December 14, 2010, you indicated that the Vancouver Sun reimburses you for the
fees you pay for records obtained through an access request. Many of the articles you and other
journalists write are informative and may in some cases stimulate public debate. However, they
also have a direct influence on the profit of the newspaper.

Conclusion
The plain language of s. 1 of the Regulations stipulates that a commercial applicant is one who
makes a request for access to information “…for use in connection with…a venture for profit”4.
For the reasons mentioned above, it is my opinion that the purpose of your request is connected
to a business or venture for profit.

I find that you are a commercial applicant within the meaning of s. 1 of Regulations. I have
concluded this investigation and have closed the file. If you have any questions, please call me at
(250) 356-0791 or contact me by email at tmots@oipc.bc.ca.

1
Order 02-31, June 2002; paragraph 25.
2
Ibid, paragraph 26.
3
[2002] B.C.I.P.C.D. No. 43, paragraph 39.
4
Freedom of Information and Protection of Privacy Regulation, B.C. Reg. 323/93, s. 1, Schedule 1.
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Sincerely,

Tim Mots
Portfolio Officer

cc. Jason Eamer-Goult, FOI Manager, British Columbia Ferry Services Inc.