Using the Fees Regulations
Freedom of Information Act
Using the Fees Regulations
The Freedom of Information Act 2000 (FOIA) and the Environmental Information
Regulations 2004 (EIR) give rights of public access to information held by public
authorities. This is part of a series of guidance notes produced to help public
authorities understand their obligations and to promote good practice.
This guidance explains the Freedom of Information and Data Protection
(Appropriate Limit and Fees) Regulations 2004 (the Fees Regulations) and how
to apply them. It highlights the main principles that must be followed and gives
some examples.
Overview
• Section 9 of the FOIA allows a public authority to charge a fee for
providing information in response to a request.
• Such a fee must be determined in accordance with the Fees
Regulations.
• Under section 12 of the FOIA a public authority does not have to comply
with a request for information if the cost of compliance exceeds the
appropriate limit.
• As well as explaining the appropriate limit, the Fees Regulations cover
charging for information when the limit is not exceeded, charging for
information when the limit is exceeded, and aggregation of requests.
• The Fees Regulations do not apply where a public authority is able to
charge for the disclosure of information under any other statutory
provision.
The appropriate limit
Section 12 of the FOIA provides an exemption from a public authority’s
obligation to comply with a request for information where the cost of compliance
is estimated to exceed the appropriate limit. The appropriate limit is the key
concept concerning fees.
The Fees Regulations state that this cost limit is £600 for central government,
legislative bodies and the armed forces (ie Part 1 of Schedule 1 of the FOIA)
and £450 for all other public authorities.
A public authority must still confirm or deny whether it holds the information
requested unless the cost of this alone would exceed the appropriate limit.
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Assessing whether or not the appropriate limit is exceeded
In estimating whether complying with a request would exceed the appropriate
limit, Regulation 4 (3) states that an authority can only take into account the
costs it reasonably expects to incur in:
• determining whether it holds the information;
• locating the information, or a document containing it;
• retrieving the information, or a document containing it; and
• extracting the information from a document containing it.
The four activities are sequential, covering the retrieval process of the
information from the public authority’s information store.
An authority can take into account the costs attributable to the time that persons
(both the authority’s staff and external contractors) are expected to spend on
these activities. Such costs are calculated at £25 per hour per person for all
authorities regardless of the actual cost or rate of pay, which means that the
limit will be exceeded if these activities exceed 24 hours for central government,
legislative bodies and the armed forces, and 18 hours for all other authorities.
NB The figures of £450 and £600 relate only to the appropriate limit; they do not
relate to the fees that may be charged.
Estimate
Section 12 makes it clear that a public authority does not have to make a
precise calculation of the costs of complying with a request. Only an estimate is
required.
The estimate must, though, be
reasonable as confirmed by the Information
Tribunal in Brown v Information Commissioner and The National Archives
(EA/2006/0088; 2 October 2007) and Urmenyi v Information Commissioner and
London Borough of Sutton (EA/2006/0093; 13 July 2007)) and can only be
based on the four activities listed above.
What amounts to a reasonable estimate can only be considered on a case by
case basis. This was confirmed in the case of
Randall v Information
Commissioner and Medicines and Healthcare Products Regulatory Agency
(EA/2006/0004; 30 October 2007) where the Information Tribunal found the
estimate to be reasonable as it was “sensible, realistic and supported by cogent
evidence”.
Where a reasonable estimate has been made that the appropriate limit would
be exceeded, there is no requirement for a public authority to undertake work
up to the limit.
The Information Commissioner can investigate the way in which an estimate
has been arrived at, and, if he considers it to be unreasonable, he can
substitute his own reasonable estimate.
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Search - There may be instances
(as in the case of Quinn v Information
Commissioner and the Home Office (EA/2006/0010; 15 November 2006))
where the search for the information alone will exceed the appropriate limit. This
case also confirmed that there is no requirement for an estimate to be provided
before the search is commenced; indeed it will often be necessary to
commence the search before an estimate can be provided. It is also possible for
a public authority, without providing an initial estimate, to search up to the
appropriate limit and then refuse to continue the search.
Exempt information - Once the documentation containing the information has
been located and retrieved, a public authority cannot take into account the time
taken, or likely to be taken, to consider whether any of the requested
information is exempt. Nor can it take into account the time taken, or likely to be
taken, to remove the exempt information in order to leave the information that is
to be disclosed in response to the request. The activity “extracting the
information from a document containing it” refers to the extraction of the
information that has been requested out of a document which contains other
information,
not to the extraction of exempt material from the information that
has been requested. This was confirmed by the Information Tribunal in the case
of Jenkins v Information Commissioner and Department for Environment, Food
and Rural Affairs (EA/2006/0067; 2 November 2007) and subsequently
endorsed by the Tribunal in the case of DBERR v Information Commissioner
and Friends of the Earth (EA/2007/0072; 29 April 2008). For further guidance on
this, see Redacting and Extracting Information.
Advice and assistance -
Where an authority refuses a request because the
appropriate limit has been exceeded, it should, bearing in mind the duty
under section 16 of the FOIA to advise and assist an applicant, provide
information on how the estimate has been arrived at and provide advice to
the applicant as to how the request could be refined or limited to come
within the cost limit. (Also, see later section ‘Appropriate limit exceeded’.)
Appropriate limit not reached
Where the cost of compliance does not exceed the appropriate limit, the request
must be complied with and the information released, unless an exemption
applies.
Regulation 6 sets out the activities that can be charged for in complying with
section 1 (1) of the FOIA, but these are
not the activities used in the estimation
of whether the appropriate limit has been reached. A public authority can
recover the reasonable costs incurred in:
• contacting the requester to inform them the information is held, and
• communicating the information to the requester.
This includes, but is not limited to, the costs of:
• reproducing any document containing the information, eg printing or
photocopying;
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• postage and other forms of transmitting the information; and
• complying with FOIA section 11 where the applicant has expressed a
preference for means of communication and where this is reasonably
practicable.
The costs permitted to be charged by Regulation 6 are referred to as
‘communication costs’. They are sometimes called disbursements and are
limited to expenses actually incurred. The cost of staff time taken to carry out
these activities
cannot be taken into account.
As stated above, the time taken to redact exempt information cannot be taken
into account in estimating the appropriate limit. However, it is possible for the
physical costs of redaction to be taken into account under Regulation 6. These
could include materials (eg tape) or use (rental, licensing) of specialist
equipment for that specific activity.
Example 1
An applicant requests information from a local authority that will cost £425 to
locate and retrieve. Communication costs are £50.
Outcome: The appropriate limit of £450 is not exceeded, and so the authority
must deal with the request. It is able to charge £50 for communication costs.
Appropriate limit exceeded
Where the estimated costs exceed the appropriate limit, the authority is not
obliged to communicate the information to the applicant. There is, though, still
an obligation to confirm or deny whether the information is held unless to do this
would in itself exceed the appropriate limit.
There is no obligation to comply with the request up to the point at which the
appropriate limit has been reached. However, public authorities should have
regard to their duties under section 16 of the FOIA to provide advice and
assistance to the applicant. Examples of the types of practices authorities might
follow in order to comply with these duties are set out in Part II of the
Code of
Practice issued under section 45 of the FOIA. Paragraph 14 of the Code
recommends that, where a public authority estimates that the cost of
compliance would exceed the appropriate limit, it should: (i) Consider providing
an indication of what, if any, information could be provided within the
appropriate limit and/or, (ii) consider advising the applicant that a narrowed or
refocused version of their request could be handled within the appropriate limit.
Even though there is no obligation to comply with a request when the
appropriate limit is exceeded, there is provision in the FOIA and the Fees
Regulations for an authority to communicate the information and charge a fee in
such cases.
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As in all cases, there is no obligation to charge fees, and the public authority
may decide to provide the information free of charge.
Fees for providing information where the appropriate limit is exceeded
The maximum fee that can be charged in such circumstances is described in
the Fees Regulations, and is the sum of:
• the costs which a public authority may take into account in calculating
that the appropriate limit was exceeded (as above);
• the communication costs; and
• staff time, at £25 per hour per person, spent on the activities included
under communication costs.
NB within the above, fees can be charged for determining whether information
is held and for communicating this to the applicant. (This includes
communicating whether or not information is held even if it will not be provided.)
Example 2
A central government department estimates that the cost of locating, retrieving
and extracting the information will be £800. Communication costs will be £100
and this element of the work will take one member of staff four hours to
complete.
Outcome: The appropriate limit is exceeded and so the authority is not obliged
to supply the information. If it chooses to do so, the following charges may be
made for the following activities:
Locating, retrieving and extracting the information = £800
Communication cost = £100
Staff time spent carrying out communication
activities (4 hours at £25) = £100
Total fee = £1,000
Alternative legal power to charge for disclosing information
Section 9(5) of the FOIA recognises that some public authorities are able to
charge fees for supplying information on another statutory basis. In such cases
the Fees Regulations will not apply. For example, the National Archives is able
to charge a search fee, and other fees, for the supply of information in various
formats (as well as other services) on the basis of the Public Record Office
Fees Order. A public authority that has an alternative statutory basis for
charging will therefore calculate the fee it is able to charge in accordance with
the alternative regime and inform the applicant accordingly, even if such a
charge would be in excess of the fees which would apply under the Fees
Regulations.
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In some cases, the application of an alternative charge by virtue of enactment
may also indicate that a separate access regime, distinct from the FOIA, exists
for that particular type of information. The FOIA cannot circumvent other access
regimes where it is appropriate for them to be applied. As such, an authority
may wish to consider whether the information is exempt by virtue of section 21
of the FOIA as it is reasonably accessible elsewhere. [See
Information
Reasonably Accessible to the Applicant by Other Means: Awareness Guidance
No. 6]
Aggregation of costs
The Fees Regulations state that two or more requests to one public authority
can be aggregated for the purposes of calculating costs if they are:
• by one person, or by different persons who appear to the public authority
to be acting in concert or in pursuance of a campaign;
• for the same or similar information; and
• the subsequent request is received by the public authority within 60
working days of the previous request.
The intention of this provision is to prevent individuals or organisations evading
the appropriate limit by dividing a request into smaller parts.
The following examples seek to cover most of the circumstances where
aggregation will apply:
Example 3
An authority receives two requests from the same person for the same or
similar information. The cost of complying with the requests, once aggregated,
is calculated to be £800 and so will exceed the appropriate limit. The authority
must inform the applicant of this and can either:
• refuse the requests on cost grounds (having first complied with the
duty to provide advice and assistance in accordance with section 16
of the FOIA);
• provide the information and charge in accordance with the Fees
Regulations (£800 plus communication costs); or
• provide the information and waive any fee.
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Example 4
An authority receives a number of requests for the same or similar information
from a group of individuals who appear to be acting together. Once aggregated,
the cost of complying with the requests is calculated to exceed the appropriate
limit and the applicants should be advised of this.
• The authority can refuse to deal with the requests on cost grounds
(having first complied with the duty to provide advice and assistance in
accordance with section 16 of the FOIA).
• If the authority decides to provide the information and recover costs, it
should charge each individual only for the constituent part of their
requests. It cannot charge the overall cost of the aggregated requests to
each applicant.
Example 5
An authority, having answered a first request, receives a second request which
qualifies for aggregation with the first. The authority is able to combine the costs
of the two requests in order to calculate whether the appropriate limit is
exceeded. If the limit is exceeded, the authority can refuse the second
application. If it chooses to provide the information, it can only charge the
constituent cost of the second request. It cannot charge the total cost of the
aggregated requests. However, where the cost of the second request is less
than the appropriate limit, the authority should explain to the applicant that the
aggregated cost exceeds the appropriate limit which allows a charge in line with
section 13 of the FOIA to be made:
Request 1 – cost of complying = £300
Request 2 - cost of complying = £375
Total cost of complying = £675
Request 1 was answered and the authority was only able to charge
communication costs. The requests can be aggregated which means that the
appropriate limit is exceeded and so Request 2 can be refused. Should the
authority decide to answer Request 2, it can charge the full amount of £375 plus
communication costs.
If further requests for the same or similar information are made, they can also
be aggregated provided they are received within 60 working days of at least one
of the earlier requests.
If an authority regularly receives requests for the same or similar information, it
should, as a matter of good practice, consider whether the information can be
made available via its publication scheme.
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Caution must be exercised when making a decision on the aggregation of
requests. For example, the aggregated cost may only exceed the appropriate
limit by a small amount in which case the authority may decide not to aggregate
the requests.
Public authorities must consider the merits of each case when considering
aggregation. In the event that an authority does aggregate requests, it should
provide the applicant with the reasons for doing so.
More information
This guidance will be reviewed and considered from time to time in line with
new decisions of the Information Commissioner, Tribunal and courts on
freedom of information cases. It is a guide to our general recommended
approach to this area, although individual cases will always be decided on the
basis of their particular circumstances.
If you need any more information about this or any other aspect of freedom of
information, please contact us.
Phone: 08456 30 60 60
01625 54 57 45
Email:
please use the online enquiry form on our website
Website: www.ico.gov.uk
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