FOI Man looks at when a public authority is allowed to charge for FOI requests, and how such charges must be calculated.
Some further education institutions appear to be charging for FOI requests. In one case, the college is routinely charging £75 per request. In another, they are charging £25 per hour. Let’s be clear, this is NOT legitimate.
What can public authorities charge? Well, if they estimate that providing the information will cost more than ‘the acceptable limit’ (currently £600 in central government or £450 for all other authorities), then they have a choice of either refusing to provide the information (in line with s.12 of the Act) or charging the full estimated cost. In estimating the cost, they can only consider the time and money it would take to:
- determine if they hold the information;
- locate the information;
- retrieve the information; and/or
- extract the information from a document containing it.
They can’t include redaction or time spent considering exemptions in their estimate of the cost. In estimating the cost, they have to calculate staff time on the basis of £25 an hour – the regulations stipulate this. This figure, of course, appears to be the basis of one of the colleges’ confusion. It’s also the basis of the rule of thumb that public authorities (outside of central government) operate of the ‘time limit’ for FOI being 18 hours (£450/£25=18). (It’s obviously 24 hours in central government – £600/£25=24).
They are allowed to charge ‘disbursements’ for things like photocopying, paper, CD-ROMs etc. for any request. This right is very rarely exercised in my experience, but may be on the rise in the current climate.
The Environmental Information Regulations (EIR) are subtly different, but in effect, largely the same. Charges can be made, but case law has made clear that this is really only for disbursements again (photocopying, printing, etc). There is no direct s.12 equivalent allowing refusal on grounds of cost, but often authorities will argue that the exception (the EIR term for an exemption) for requests which are ‘manifestly unreasonable’, can be used to refuse requests which will be expensive to comply with. DEFRA’s guidance and case law appear to support this.
In summary, public authorities cannot charge a standard fee for FOI or EIR requests – they can only charge for disbursements or for requests which cost more than the ‘acceptable limit’ (£600 for central government; £450 for all other public authorities). At least, that’s the situation at present – it remains to be seen whether the outcome of the Government’s post-legislative review of FOI will be changes to the charging arrangements for requests.
I do wonder if we will eventually be required to charge people a small fee ala the £10 for subject access requests. Interesting that the one FOI request that never seems to be made is “How much public money do you spend on responding to FOI requests!!” 😉
I’ve never yet charged anyone disbursements, but like you say, with the recession it might be something that creeps in. I hope not as it seems somewhat petty.
With regards to Section 12 and the appropriate limit, it’s worth mentioning a third option, which is the ask the requester if they can modify their request so that it will be under the limit. Obviously this sits nicely with the duty to assist.
Thanks for your comment Paul. Good point about advising how to bring within limit. I generally do both-I refuse using s12 and advise how to bring it within the limit. Then they can submit a new request under the limit.