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Guidance on the application of the Freedom of Information and Data Protection (appropriate limit and fees) regulations 2004



Introduction

1.1 The Freedom of Information Act 2000 (FOI Act) will allow greater access to information held by public authorities from 1 January 2005. The majority of costs for complying with requests will be met by the public sector. However, the right to access information needs to be balanced by the need of public authorities to continue to carry out their other duties. For this reason, the Freedom of Information Act allows for public authorities to decline to comply with certain requests for information on the grounds of cost where these requests would be particularly expensive. It also allows for public authorities to charge for answering requests for information in certain circumstances. Further details are in the Regulations [Endnote 1] made in accordance with the Act.

1.2 The Freedom of Information Act has always been intended to build on existing channels for providing information: to provide access to information where it did not previously exist rather than replacing existing access regimes. To that end, it makes provision that where information is reasonably accessible to applicants through other means, such as through other legislation or through an authority's publication scheme, it is exempt from FOI. This means that the rules for costing and charging for compliance with the Act do not apply in these cases.

1.3 Legislative background

1.3.1 Section 12 of the FOI Act allows public authorities to refuse to answer requests for information if the cost of complying would exceed the "appropriate limit" prescribed in the Regulations. Section 9A of the Data Protection Act 1998 (inserted by section 69 of the FOI Act) makes similar provision in relation to subject access requests to public authorities insofar as they relate to "unstructured personal data".

1.3.2 Sections 9 and 13 of the FOI Act allow public authorities to charge for answering requests in certain cases.

1.3.3 The guidance makes reference throughout to these different sections of the two Acts, in particular the relevant sections of the FOI Act.

1.4 This guidance:

1.5 The guidance has been written primarily to help public authorities, but is also of relevance to the general public making FOI requests.

1.6 The Regulations governing the appropriate limit, and the fees that can be charged for requests for information, are available at www.foi.gov.uk. They will come into force, along with the Act's new rights of access to information, on 1 January 2005.


2 The appropriate limit

2.1 The "appropriate limit", for the purposes of section 12 of the Freedom of Information Act and section 9A of the Data Protection Act, has now been set at:

2.2 The appropriate limit has to be applied, separately, to the duty under section 1(1)(a) of the FOI Act to confirm or deny whether the information is held, and the duty under section 1(1)(b) of the Act to communicate the information. A similar distinction is made in relation to the Data Protection Act. It is only if it would cost more than the appropriate limit to confirm or deny, by itself, that the obligation to do so is removed. In the case of personal data subject access, it is only in so far as the data are "unstructured" within the meaning of the Act that the appropriate limit applies; no limit applies to any other forms of personal data.

2.3 Calculating whether complying with a request would exceed the appropriate limit

2.3.1 The system of determining whether or not the appropriate limit would be exceeded should be relatively simple to operate in the majority of cases. It will often be immediately obvious that the cost will not exceed the appropriate limit. The public authority will therefore not need to estimate the costs of such requests for the purpose of charging. But if a request is more complicated and likely to take longer to answer, the public authority will have to consider on a case by case basis if it wishes to estimate whether the appropriate limit would be exceeded in advance. It will have to make such an estimate if it wishes to refuse the request, or charge more, because the appropriate limit has been exceeded.

2.3.2 The Regulations set out what may be taken into account when public authorities are estimating whether the appropriate limit has been exceeded. The costs are limited to those that an authority reasonably expects to incur in:

2.3.3 The authority may take into account the costs attributable to the time that persons are expected to spend on these activities on behalf of the authority - both the authority's own staff and any one else (for example external contractors) engaged by it for these purposes.

2.3.4 In order to achieve consistency, all public authorities should use the same hourly rate when estimating staff-time costs, regardless of the actual costs. The hourly rate is set at £25 per person per hour.

2.3.5 An authority may not take into account any costs other than those set out in the Regulations. In particular it may not take account of the expected costs of:

2.3.6 If the applicant does not agree with a public authority's decision that the cost of complying with the request would exceed the appropriate limit, he or she can ask the Information Commissioner to intervene.

2.4 Aggregating requests for costing purposes

2.4.1 In certain situations, the costs of answering more than one request can be added together or aggregated for the purposes of estimating whether the appropriate limit would be exceeded in relation to any one of those requests. This only applies to requests under the Freedom of Information Act, not to subject access requests to public authorities on "unstructured personal data" to which the Data Protection Act applies.

2.4.2 The Regulations state that requests can only be aggregated in the following circumstances:

2.4.3 This provision is intended primarily to prevent individuals or organisations circumventing the appropriate limit by splitting a request into smaller parts. As a matter of good practice, authorities should exercise caution when considering whether requests should be aggregated. There should usually be strong grounds for believing that requests have been framed precisely in order to circumvent the appropriate limit. Public authorities should take an overall view of resources which would have to be committed to answering all of the requests, and consider refraining from aggregating if, for example, it would mean that the appropriate limit was exceeded by only a very small amount.

2.4.4 Some worked examples of aggregation are described in the annex. Advice on the separate issue of whether to refuse to answer multiple questions altogether on the grounds that they are repetitious or vexatious requests is included in chapter 3 of the Department for Constitutional Affairs' procedural guidance, available at http://www.foi.gov.uk/guidance/proguide/chap03.htm


3 Requests costing less than the appropriate limit

3.1 If a request would cost less than the appropriate limit to answer, and there is no other basis on which it may be refused or otherwise dealt with, the public authority must comply with the request. It cannot charge for the areas listed in paragraph 2.3.2 in relation to the request. The fees that can be charged are much more restricted than when the appropriate limit is exceeded, with the public authority bearing the majority of the costs of the request. The maximum fee that can be charged depends on whether the request relates to unstructured data (under the Data Protection Act), or whether it must be answered under section 1 of the Freedom of Information Act.

3.2 For personal data subject access requests, whether or not they include unstructured personal data, the maximum fee prescribed in the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000 is £10 [Endnote 7]. For requests to which section 1 of the Freedom of Information Act applies, the maximum fee has to be calculated in accordance with the Regulations. This is described in section 3.4 below.

3.3 Authorities can develop their own policies on charging fees below the maximum, with the discretion to charge a lower fee or waive fees altogether. This would need to be properly thought through on the ordinary principles of good policy-making. It is recommended that authorities should publish their policies on charging as an aid to applicants, and ensure that all staff are aware of the policy and know how to apply it consistently. Authorities cannot develop fees policies that would lead to them charging more than the maximum allowed for in the fees Regulations where those maximum fees apply.

3.4 Calculating the maximum fee for complying with section 1 of the Freedom of Information Act

3.4.1 In cases where the appropriate limit has not been exceeded, the maximum fee that could be charged is based on an authority's estimate of the costs that it reasonably expects to incur in:

3.4.2 This includes the costs of:

3.4.3 When the appropriate limit has not been met, it is only these costs which may be taken into account for the purposes of calculating the maximum fee. In addition, no account can be taken of staff time in undertaking these activities, nor of the costs involved with calculating whether the appropriate limit would be exceeded. For example, if the appropriate limit was not exceeded and you were providing information to an applicant:

3.4.4 The costs that can be taken into account make reference to section 11(1) of the FOI Act. This states that public authorities have a duty to give effect to an applicant's preferred format for receiving information, so far as this is reasonably practicable. This may include:

3.4.5 Authorities can charge for the actual costs incurred, but charges are expected to be reasonable. For example, in most cases, photocopying and printing would be expected to cost no more than 10 pence per sheet of paper.

3.4.6 In some cases, authorities may be required by other legislation to produce information in a particular format or a different language at no additional cost (and should not therefore charge for it as part of complying with the FOI Act). For example, the requirement to make reasonable adjustments for disabled people under the Disability Discrimination Act 1995 could require an authority to produce material in a format such as Braille or on audio tape. Another example would be translating information into Welsh when required by the Welsh Language Act 1993.

3.5 Charging a fee for complying with section 1 of the Freedom of Information Act 2000

3.5.1 Where the maximum fee would be very low - say less than £5 or £10 - public authorities are encouraged to consider waiving the fee altogether.

3.5.2 If a public authority proposes to charge a fee for answering a request, it must issue a fees notice to the applicant, stating the fee. The fees notice should usually be issued before any costs are incurred in preparing to communicate the answer to the request. When an authority issues a fees notice, the applicant has three months to pay. If payment is not forthcoming, the authority does not have to answer the request (section 9(2) of the FOI Act).

3.5.3 Where an authority proposes to charge a particularly high fee, it is good practice for the fees notice to be accompanied by an invitation to the applicant to discuss whether a free or cheaper alternative format might meet his or her needs equally well.

3.5.4 Requests for information to which section 1 of the FOI Act applies have to be answered promptly, and in any event not later than the twentieth working day following date of receipt (unless the case is one where the Act provides for an extension of time). However, section 10(2) of the FOI Act states that:

"where the authority has given a fees notice to the applicant and the fee is paid in accordance with section 9(2), the working days in the period beginning with the day on which the fees notice is given to the applicant and ending with the day on which the fee is received by the authority are to be disregarded in calculating ... the twentieth working day following the date of receipt".

3.5.5 If payment is received by cheque, the authority can choose to accept the cheque as confirmation of payment (ie count the day the cheque arrives as the date on which the fee is received), but does not have to do so. In these cases, it is recommended that the date on which the fee is received should be counted as the day the cheque is cleared. This would prevent the possibility of payment not being received due to the cheque bouncing. However, public authorities should not seek to extend this period by delaying paying in cheques.

3.5.6 For example, if a request is received on Monday 1st, the authority issues a fees notice on Thursday 4th, and payment is received on Wednesday 10th, the working days will be calculated as follows:

Monday 1st - request received
Tuesday 2nd...........................first working day after date of receipt
Wednesday 3rd......................second working day
Thursday 4th - fees notice issued
...
Wednesday 10th - payment received
Thursday 11th.........................third working day
etc

3.6 Refunds

3.6.1 If the actual cost of answering the request turns out to be greater than the estimated cost charged by way of a maximum fee, the authority must bear the additional cost. The FOI Act does not allow for authorities to issue another fees notice to cover the additional cost. But if the actual cost of answering the request proves to be less than the fee charged, the public authority should consider refunding the excess money to the applicant.


4 Requests costing more than the appropriate limit

4.1 If requests would cost more than the appropriate limit to answer, the public authority is not obliged under section 1 of the FOI Act to answer it. However, in deciding how to handle the request, the authority must take account of section 16(1) of the Act. Section 16(1) requires the authority to "provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it". If a request is particularly wide-ranging, and therefore likely to be expensive to answer, the authority should consider discussing this with the applicant and see if the question could be refined to a more manageable level, or resubmitted in part, to bring it below the appropriate limit.

4.2 If after providing advice and assistance as required under section 16, the request is still over the appropriate limit, the authority must inform the applicant that it estimates that the appropriate limit has been exceeded as soon as possible, and no later than the usual time limit for answering requests. It then has a number of options.

4.3 If a request would cost more than the appropriate limit to answer, the requirements of section 1(1) and of those parts of the Act which depend on an authority's compliance with section 1(1) cease to apply. For example, authorities are not legally obliged to comply with section 9(1) (which states that authorities must issue a fees notice when charging a fee); section 10(1) (which sets a time limit of 20 working days for answering a request); or section 11(1) (whereby authorities should put information in the preferred format of the applicant where reasonably practical) when choosing to answer a request that exceeds the appropriate limit.

4.4 However, it is recommended that, where appropriate, authorities adopt the same approach when answering information requests, with regards to fees notices, time limits and applicants' preferences for requests, whether or not the request exceeds the appropriate limit. [Endnote 9] This would be simpler to operate, with staff and the public having a clearer idea of what they can expect from an FOI request. It would also be administratively simpler (for example, it would be difficult to charge a fee without using some way of informing the applicant what this was). Importantly, it would also meet the requirements of section 16 - which applies to all requests - to offer reasonable advice and assistance to applicants.

4.5 Charging a fee when the appropriate limit is exceeded

4.5.1 Section 13 of the Act introduces a new power for authorities to charge fees when they choose to reply to a request that they do not have to because it exceeds the appropriate limit. However, section 13 does not displace any existing legal power, statutory or otherwise, to charge for the disclosure of such information. If a public authority already has a legal power to charge, it can continue to rely on this existing power, and the provision made in the Regulations as to what may be charged for under section 13 will not apply. Section 13 only applies when the authority does not have any greater power to charge for information.

4.5.2 Where section 13 is not relied on, therefore, and authorities are relying on other powers to charge in cases above the appropriate limit, it is those powers which will determine how much can be charged and any applicable maximum. Note that this only applies to the fees that are charged - when calculating whether the appropriate limit is met, all authorities must follow the rules in the Regulations, including using the standard rate of £25 per hour.

For example, an authority has existing powers to charge where the appropriate limit has been exceeded. It chooses to charge at a rate of £30 per hour for the time taken to comply with requests for disclosure of information. It receives a request that would require 25 hours' work.

4.6 Calculating the maximum fee when relying on section 13

4.6.1 Where section 13 does apply, the fees Regulations state the maximum amount that can be charged, although there is nothing to prevent authorities from charging less than this or charging no fee at all. [Endnote 10] If the costs exceed the appropriate limit, the maximum charge is the sum of -

4.6.2 For example, if it would take 30 hours of staff time to locate, sort and edit information in response to a request, costing £750 (based on the standard rate of £25 per hour in accordance with paragraph 2.3.4), and the cost of photocopying and sending out the information would be £100, the authority could charge up to a total of £850 for answering the request.

4.6.3 Section 13 provides that fees can be charged for the "communication of any information", as long as the appropriate limit is exceeded. That includes communicating whether or not the information is held, even where the information is not itself provided to the applicant. For example, an archives service might receive a request for a specific piece of information when there is good reason to suppose from its catalogues that it may hold the information. However, it would only be possible to be certain once a search has been made of specific documents. The cost of the search might exceed the appropriate limit. If it did so, the archive could charge for the cost of the search, even if at the end of the search it discovered that it did not hold the information, or that the information was exempt under one of the exemptions listed in part II of the Act. However, the archive could not charge for the search if it discovered that it could neither confirm nor deny that it held the information.


5 Fees and information that is exempt under the FOI Act

5.1 Information that is exempt from section 1 of the Freedom of Information Act through one of the exemptions listed in Part II of the Act is not affected by the FOI fees regime. Detailed guidance on whether the different exemptions apply is available at http://www.foi.gov.uk/guidance/exguide/index.htm

5.2 Section 21 of the Act provides that information is (absolutely) exempt if it is "reasonably accessible" to the applicant otherwise than under section 1. Information will always be considered reasonably accessible if -

5.3 Publication schemes

5.3.1 Every public authority must, under the Act, have a publication scheme. Section 19(2) of the Act lists the requirements of a publication scheme, which must:

"(a) specify classes of information which the public authority publishes or intends to publish,
(b) specify the manner in which information of each class is, or intended to be, published, and
(c) specify whether the material is, or is intended to be, available to the public free of charge or on payment."

5.3.2 In effect, the publication scheme can constitute a mini-disclosure regime, setting out the information or classes of information that the authority has available, and the terms on which it will make the information available, including if it charges for such information. Authorities could say what classes of information they will publish in the publication scheme, including by reference to the information that is not included in the scheme (for example, if it were exempt under one of the FOI exemptions). So, for example, an authority could say:

"we intend to publish information within category X" or

"we intend to publish information within category X, unless it falls within category Y / is information that would fall within the terms of the exemptions in Part II of the Freedom of Information Act".

5.3.3 In this latter case, requests for information falling within category Y would not be able to be treated as automatically falling outside the scope of section 1. A request for that information would have to be treated in the normal way in compliance with the Act. It would therefore be subject to the normal rules and procedures, including on costs and fees, as well as being subject to the exemptions in Part II of the Act in the usual way.

5.3.4 Authorities can therefore charge fees outside the terms of the Regulations for providing information through the publication scheme, provided that this is made clear as part of the scheme. For example, this could include set fees for specific pieces of information, or information about how any fees would be charged (such as a set rate per hour of work, a scale of charges, or the market rates for the work).

5.3.5 The publication scheme places an obligation on authorities to publish information that it holds which is listed in the scheme. [Endnote 11] Therefore, if a publication scheme specifies categories of information that will be published, the authority must make sure that all information within that category is, or is intended to be, published unless otherwise stated. If the authority refuses to disclose information included within a category listed in its publication scheme, without having previously said that the information is not available, it may be in breach of section 19(1)(b). Care is therefore needed to ensure that no information is promised under a publication scheme which the authority does not in fact intend to disclose - for example because it would otherwise fall within the terms of one of the exemptions in Part II other than section 21.

5.3.6 Publication schemes must be approved by the Information Commissioner before they have the effect provided for in section 21. The Information Commissioner has already approved a range of publication schemes allowing archives and trading funds to charge autonomously for information services, as well as schemes for other public authorities that might charge for information. However, the Information Commissioner is very unlikely to contemplate approving publication schemes devised with the clear aim of doing nothing more than allowing public authorities to comply with the minimum requirements of the Act but with inflated charging regimes. If a publication scheme is not approved, then section 21 of the Act would not necessarily apply to the information contained within it.

5.4 Organisations currently providing information in return for a fee

5.4.1 A large number of public authorities have developed services where information is provided in return for a fee. Examples include organisations that provide services on a commercial basis (such as trading funds), which are required to cover their costs for these services. Similarly, archive services will often carry out information searches in return for a fee, at an applicant's request.

5.4.2 The Freedom of Information Act has always been intended to build on existing channels for providing information: to provide access to information where that access did not previously exist, rather than replacing existing access regimes. As noted above, where information is reasonably accessible to applicants through other means, for example if it is made available under a separate enactment or through an authority's publication scheme, it is exempt from FOI and from its costs and charging regime.

5.4.3 As long as an organisation has listed the information or classes of information that it trades in within its publication scheme, and the conditions under which information will be provided, it will be able to charge for providing the information in accordance with its publication scheme. In addition, if the organisation decides to trade in new areas of information in the future, this can also be added to the publication scheme.

5.5 Section 22 of the Act exempts authorities from providing information if it is intended for publication. This includes if an authority is intending to charge for the information once it is published. The application of section 22 is subject to a reasonableness test, and to the balance of the public interest for and against delaying disclosure until the planned publication date.


6 VAT

6.1 Sections 9 and 13 of the Freedom of Information Act 2000 gives public authorities the option to charge for information in accordance with the fees Regulations (SI 2004/3244). As the Act does not set a specific fee, any monies charged are not statutory fees. However, if the information could only be provided by a public authority (ie the information is not also held by organisations that are not public authorities), Customs do not consider that information released under the Act constitutes an economic activity. As such, any fees charged in these circumstances will be outside the scope of VAT. This means that no VAT should be added to the fees.

6.2 If, on the other hand, a public authority is not the only possible source of the information (ie the information is also available from a source that is not a public authority), any fees charged would attract VAT, as this would be classed as economic activity. This distinction is made so as not to distort competition between the public and private sector.

6.3 These rules apply equally to requests that are above or below the appropriate limit - the key determining factor as to whether VAT is charged is whether the information is available from another source that is not a public authority.

6.4 So, to summarise:


7 Central government treatment of FOI receipts in National Accounts

7.1 HM Treasury has issued guidance that Departmental Resource Accounts will treat any receipts generated from charging for Freedom of Information requests as income. In the Departmental Resource Estimate, the receipt should be appropriated in aid against the related expenditure, subject to the normal Parliamentary procedures.

7.2 Since the charge should do no more than fully recover limited costs of providing the service, any income should be treated as a benefit to the department's budget and so offset the budgetary costs of providing the information. Usually the receipt would be negative DEL, as the spending would be incurred in DEL.

7.3 Similarly for other public authorities, money from any fees will not have to be passed to HM Treasury, but will remain with the public authority in question.


8 Mixed requests

8.1 A mixed request is a case in which part of the information requested is regulated by one access to information regime, and other parts by other information regimes. Chapter 5 of the Department for Constitutional Affairs' procedural guidance about handling FOI requests gives more details of the handling of mixed requests and the key features of the different regimes (available from http://www.foi.gov.uk/guidance/proguide/chap05.htm).

8.2 The access regimes most likely to be encountered apart from FOI are:

8.3 Information about the Data Protection Act is available at www.dca.gov.uk/foi/datprot.htm and www.informationcommissioner.gov.uk

8.4 Information about the Environmental Information Regulations is available at http://www.defra.gov.uk/corporate/opengov/index.htm

8.5 The three regimes have different fee provisions:

8.6 Public authorities must separate out the constituent parts of the request for the purposes of calculating what fees may be charged. Maximum fees must be determined according to each separate regime. For example, where a request is for a mixture of an applicant's own personal data, and other information to which the FOI Act applies, then the maximum fee will be the sum of the maximum subject access fee and the maximum fee for providing the remainder of the information calculated under the FOI regime.

8.7 Public authorities' fees policies should, however, consider making provision where appropriate for working on the basis of a maximum fee that is less than the aggregate total. For example, where the cost of providing the personal data component of the answer as well as the FOI component would be less than £10, authorities should consider in practice charging on the basis of a maximum fee related to the costs of providing the information.


9 Charging for re-use of disclosed information

9.1 Whether or not a public authority charges for disclosure of information (either under section 9 or section 13 of the Act, or indeed otherwise [Endnote 13]), the question of whether it may make a charge for the subsequent use of that information is not covered by the Act or the Regulations. The Freedom of Information and Data Protection Acts do not give public authorities any new powers to charge for the re-use of the information which they disclose. But public authorities can in any event rely on any existing powers they have to charge for the use of information, and may derive such powers from other sources.

9.2 Much information supplied under the Freedom of Information Act will be subject to copyright protection under the Copyright, Designs and Patents Act 1988. Information can be re-used for the purposes of research for non-commercial purposes, for private study, or for news reporting and reviews, without requiring formal consent. However, if the applicant wished to re-use the information for commercial purposes, including publishing, he or she would require the permission of the copyright holder. Permission to re-use copyright information is granted in the form of a licence.

9.3 The EU Directive on the re-use of public sector information seeks to encourage the re-use of documents produced by the public sector. Regulations will be made to implement the Directive under UK law on 1 July 2005. Under the Regulations, public authorities will be able to charge for the re-use of documents. Where charges are made, they should reflect the total cost of collecting, producing, reproducing and disseminating documents, together with a reasonable return on investment. Any charges for re-use should be off-set against any already made under FOI in order to avoid double charging.


Endnotes

  1. The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004
  2. 'Central government' is defined as those authorities listed under Schedule 1, Part I of the FOI Act, i.e. any government department, the House of Commons, the House of Lords, the Northern Ireland Assembly, the National Assembly for Wales and the armed forces of the Crown. Section 84 of the FOI Act gives a further definition of 'government department'.
  3. 'Other public authorities' are defined as those public authorities listed under Schedule 1, Parts II-VII, as well as organisations brought into the scope of the Act through section 6, or designated under section 5 of the Act.
  4. This can include the first time an individual working in the authority reads information to establish what is contained within a file or document, although any subsequent readings (e.g. to consider exemptions), or if the information is passed to others to read, should not be included.
  5. Section 8 of the Act explains that to be classed as an information request, the request must be in writing (including if sent electronically), give the name and address for correspondence of the applicant, and describe the information requested.
  6. 'Working days' does not include weekends and public and bank holidays, as defined in the Regulations
  7. Credit reference agencies can only charge a maximum fee of £2. Education records and manual health records attract a maximum fee of £50.
  8. In the majority of cases, this could be done at no or minimal cost to the authority - it should usually be possible to set aside space for the applicant to inspect the records with minimal disruption to the work of other staff. In such cases, no charge should be made. However, a small number of public authorities working in sensitive areas might need to have a member of staff sit with the applicant at all times, with the staff member away from their usual workstation and unable to carry out their usual work. This could therefore prove expensive for the authority. In these limited circumstances, authorities should inform the applicant of the likely cost and offer the information in an alternative format. If the applicant still wants to inspect the records, the authority could charge for its staff time at a rate of £25 per hour.
  9. If a public authority decided not to adopt the same system for requests above the appropriate limit, it would be helpful to inform applicants in advance. For example, if an authority chose to answer a request costing more than the appropriate limit, but the volume of work required meant that it couldn't answer within 20 working days, it would be sensible to inform the applicant in advance.
  10. Again, authorities should ensure that they adopt a thought through approach to charging and publish their policies, as described in paragraph 3.3.
  11. If an authority does not hold a specific piece of information that falls within one of the categories listed in its publication scheme, then it cannot be obliged to provide it.
  12. Credit reference agencies can only charge a maximum fee of £2. Education records and manual health records attract a maximum fee of £50.
  13. This issue may not always arise. If, for example, a request exceeds the appropriate limit, and the authority has an existing power to charge for information (thus not relying on section 13 to charge), it might already include a charge for the re-use of information within any charge it makes.

FAQs

What happens if the hourly staff costs of answering requests in my authority is more than £25?

£25 is the standard hourly rate that all authorities must use to calculate the staff costs of answering requests. This makes the system more transparent and more consistent, as well as making it easier for applicants and authorities to understand. It is recognised that in some cases, the hourly cost of answering requests will be higher than this, but equally in other cases, the hourly cost will be lower. £25 has been chosen as an average figure.

Why was the figure of £25 chosen?

The figure of £25 was based on the average hourly rates charged by central government departments in response to requests made under the Code of Practice on Access to Government Information. Actual hourly rates will vary across the country - in some authorities, staff costs will be lower and in others they will be higher. However, a standard hourly rate has been adopted to ensure greater consistency and transparency when authorities are calculating charges.

If a request is going to cost more than the appropriate limit to answer, can I charge at a different hourly rate for the period above the limit?

Where section 13 is not relied on, and authorities are relying on other powers to charge in cases above the appropriate limit, it is those powers that will determine how much can be charged and any applicable maximum. Note that this only applies to the fees that are charged - when calculating whether the appropriate limit is met, all authorities must use the standard rate of £25 per hour.

For example, an authority has existing powers to charge where the appropriate limit has been exceeded. It chooses to charge at a rate of £30 per hour for the time taken to comply with requests for disclosure of information. It receives a request that would require 25 hours' work.

Do the fees Regulations include different rates for individual requestors / the voluntary sector / private companies?

No. The fees Regulations do not distinguish between the people making the request, whether that be an individual, voluntary organisation, private sector organisation or another public authority. The same rates apply in every case.

How can we avoid unfairness in charging the first person who requests a piece of information a fee related to the costs of locating it, and subsequent requesters much less because the information has already been found?

If the information is of sufficiently general interest that more than one person requests it, the best approach may be to make it available through the publication scheme. Authorities must otherwise apply the costing and fees regime in the circumstances of each individual case. In rare cases where two applicants happen to request information that is not suitable for publication, the second applicant would benefit from the fact that the work had already been carried out in answering the first request.

Should we charge for information that we decide to publish?

Authorities are free to charge for publications that comply with the requirement of section 21 of the FOI Act that the information should be reasonably accessible. It will always be reasonably accessible if provided in accordance with an authority's publication scheme.

If authorities research a piece of information in response to a request and immediately decide to make such information available for free (for example, by publishing the response on the website), it is not always good practice to charge the person making the initial request.

Will there be a review of the fees Regulations?

Yes. Ministers have decided to review the fees Regulations 8-12 months after the Freedom of Information Act is fully implemented on 1 January 2005.

Will the £25 hourly staff cost / appropriate limit of £600 or £450 be reviewed in future?

These will be included in the review of fees to take place 8-12 months after implementation. No decisions have yet been taken on reviewing the fees after this period, but it is likely that the hourly rate and appropriate limit will be reviewed periodically thereafter.

What happened to the proposal to charge for 10 per cent of marginal costs?

When the Freedom of Information Act was first passed, the original proposal for calculating fees would have allowed authorities to charge 10 per cent of the marginal costs where the cost of answering the request was below the appropriate limit. The Government has decided that calculating 10 per cent of the marginal costs of every request would be too complex both for applicants and public authorities. It could also prove more expensive for authorities to administer this system once the cost of estimating the charge, issuing the fees notice and processing payment had been taken into account. The system described above is simpler, and meets the Government's commitment that the cost of Freedom of Information requests should largely be met by the public purse.

Do public authorities have to calculate 10 per cent of costs above the appropriate limit?

No. Authorities will not have to calculate 10 per cent of costs for any request. They only have to decide whether the cost of answering the request would exceed the appropriate limit: if it does, they have the choice not to answer, to answer and charge a fee, or to answer and waive the fee as described above. If it does not exceed the appropriate limit and section 1 applies - and the majority of requests will not exceed the limit - the authority can charge only for limited costs of informing the applicant whether the information is held and communicating the information.


ANNEX - AGGREGATION

Part 2.4 of this guidance explained the circumstances in which requests can be aggregated for the purpose of calculating whether the appropriate limit has been met. This annex provides detailed examples of how this might work in practice, and explains how public authorities can charge if they aggregate requests.

Example: an authority receives from the same person two related requests that would meet the criteria for aggregation. Each is costed in accordance with the Regulations at £350. The aggregated costs are therefore £700. This exceeds the appropriate limit, and the authority must inform the applicant accordingly. If the authority chooses to answer both requests, and relies on the section 13 charging power, it can charge the full £700, together with the costs of communicating the answers to the requests as provided by the Regulations. It should explain why it aggregated the two requests.

Although requests are aggregated to calculate the appropriate limit, the authority can only charge each applicant for the request he or she made. If the requests were received from different people acting together or as part of a campaign, the public authority should charge each person the cost of his or her request (in the above example, £350 plus cost of communicating each answer). It cannot charge the full cost of the two requests to one of the applicants. As before, it should explain why the requests had been aggregated.

What happens if the first request has already been answered?

In the above example, the authority received the two requests at the same time. If the authority had received the two requests at different times, and the first request had already been answered, the authority could aggregate the costs of the two requests to consider whether the cost of the second request would exceed the appropriate limit. But it must calculate the maximum fee chargeable on the second occasion by reference to the costs of the second request only.

Example: an authority has answered a request costing £350. It receives a second, related request costing £350 that meets the criteria for aggregation. The aggregated cost, £700, is more than the appropriate limit. The authority can choose whether or not to answer the second request. If it chooses to answer, the maximum it can charge in reliance on section 13 is £350 plus the cost of communicating the second answer. It should explain why the requests have been aggregated for fees purposes. It should also make clear that although the cost of the individual request and the amount being charged was less than the appropriate limit, the aggregated total was over the appropriate limit, thus charging under section 13 was appropriate.

Similarly, if the requests were received from different people acting together or as part of a campaign, the authority would only be able to charge the person making the second request, as the first request would already have been answered.

What happens if an authority receives more than two requests?

An authority can aggregate any number of requests that it receives within any period of 60 working days. If an authority receives a series of requests over a longer period than 60 working days, it can only aggregate requests that fall within a 60 working day period.

Example: an authority receives three requests: request A on the first working day, request B on the 40th working day, and request C on the 70th working day. All requests are on the same subject matter and meet the definition of requests that can be aggregated for the purposes of calculating the appropriate limit.

If public authorities are receiving a number of related requests on the same subject, it should consider whether to publish the information, where it would appear to be of public interest.


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