Ministry of Justice

Fees and aggregation

In most cases, information will be provided free of charge. However, the Act provides for public authorities to charge for information in certain circumstances.


The principle behind the Freedom of Information Act is to give people rights to access information held by public authorities (unless it is exempt). However, that right to information must be balanced by the public authority's duty to deliver its front-line services. The Act allows for public authorities to decline to comply with 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.

The Act is 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. The Act provides 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. This means that the rules for costing and charging for compliance with the Act do not apply in these cases. Any charges for information should be in accordance with your authority's publication scheme or the other legislation.

This guidance also outlines how fees can be applied to 'subject access requests' under the Data Protection Act 1998.

For more information on the Data Protection Act see Is this a request under the Act?

Introduction

Section 12 of the Freedom of Information Act allows public authorities to refuse to answer requests for information if the cost of complying would exceed the 'appropriate limit' prescribed in the Fees Regulations (SI 2004/3244). Section 9A of the Data Protection Act 1998 (inserted by section 69 of the Freedom of Information Act) makes similar provision in relation to subject access requests to public authorities insofar as they relate to 'unstructured personal data'.

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

  • Section 9 applies to requests where the appropriate limit has not been met, and where the authority is obliged to provide information in compliance with section 1(1) of the Act. It is set by Regulation 6, and covers postage, photocopying or other disbursements.
  • Section 13 applies if the appropriate limit is exceeded, and the authority is not obliged to comply with the request, but is able and willing to answer and would like to do so in return for a fee. It does not affect any other fee-setting powers an authority might have, but is a distinct power for those authorities that would not otherwise be able to charge fees in these circumstances.
  • The Fees Regulations set out the maximum fee that can be charged in each case. Authorities are free to charge a lesser amount or make no charge.

This guidance:

  • explains what is meant by the term 'appropriate limit' for the purposes of Section 12 of the Act
  • describes the (limited) fees that apply if the appropriate limit is not exceeded and how these should be calculated
  • describes the fees that can be charged if the appropriate limit is exceeded, and how these should be calculated
  • explains what happens about charging if information is exempt under the Act, with particular reference to publication schemes
  • explains areas such as VAT, mixed requests, and charges for reuse of information.

This guidance also includes examples of cases that have been decided by the Information Tribunal  that you may find useful as a reference.

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The appropriate limit

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

  • £600 for central government and Parliament
  • £450 for other public authorities, including local authorities, police, the health service and education.

The appropriate limit has to be dealt with separately from the duty under section 1(1)(a) of the Freedom of Information 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.  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.

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Calculating whether a request would exceed the appropriate limit

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. If a request is complicated or likely to be time consuming, 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. It will have to make such an estimate if it wishes to refuse the request, or to charge more, because the appropriate limit has been exceeded.

Regulation 4(3) sets 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:

  • determining whether it holds the information requested
  • locating the information or documents containing the information
  • retrieving such information or documents
  • extracting the information from the document containing it (including editing or redacting information).

The Fees Regulations are silent on whether redacting exempt information is an allowable cost when calculating the appropriate limit. The Ministry of Justice's position is that redacting exempt information is permitted (as it is necessary in order to 'extract' the information that must be provided). The Tribunal expressed some doubt about this in the case of Jenkins, but the issue was not central to their decision and the decision was not appealed. The Tribunal agreed that redacting information that is not within the scope of the request is permitted.

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 anyone else (for example external contractors) engaged by it for these purposes.

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 by Regulation 4(4).

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:

  • the time taken to check that a request for information meets the requirements of the Freedom of Information Act
  • considering whether the information requested should be withheld in reliance on an exemption under the Act. This includes any costs incurred through seeking legal advice about whether exemptions apply
  • considering whether a request is vexatious or a repeated request
  • obtaining authorisation to send out the information
  • the time taken to calculate any fee to be charged
  • advice and assistance provided under section 16 of the Act.

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 investigate.

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Requests costing less than the appropriate limit

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 above 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.

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. 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.

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.

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

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:

  • informing the person making the request whether it holds the information
  • communicating the information to the person making the request.

This includes the costs of:

  • putting the information in the applicant's preferred format, so far as this is reasonably practicable, as set out in section 11(1) of the Act
  • reproducing any document containing the information, eg photocopying or printing
  • postage and other forms of communicating the information.

When the appropriate limit has not been met, the costs described are the only costs which may be taken into account for the purposes of calculating the maximum fee. 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:

  • you could not charge for the time taken to locate, retrieve or extract the information or to write a covering letter to the applicant explaining that the information is being provided
  • you could charge for the cost of paper when photocopying or printing the information and printing the covering letter, as well as the cost of postage.

The costs that can be taken into account make reference to section 11(1) of the Freedom of Information 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:

  • summarising the information
  • providing the applicant with a copy (for example by photocopying or printing)
  • allowing the applicant reasonable opportunity to inspect a record containing the information
  • producing material in an applicant's preferred format (for example by putting it onto CD-ROM, video or audio cassette)
  • translating information into a different language at the request of the applicant. If a public authority regularly works in the language requested and has an in-house translation service, it should consider waiving any translation costs. However, public authorities are not obliged under the Act to translate documents if this would not be 'reasonably practicable'.

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 10p per sheet of paper (2).

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 Freedom of Information 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.

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

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

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 Freedom of Information Act).

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.

A request for information under freedom of information should be answered within 20 working days.  If an authority chooses to issue a fee notice following a request it will need to ensure that it calculates the time period properly.  An example of how the time period should be calculated is set out below:

A request for information is received by a Public Authority on Monday 1st. The authority then issues a fees notice on Thursday 4th. The working days should be calculated as follows:

Monday 1st request received
Tuesday 2nd first working day
Wednesday 3rd second working day
Thursday 4th authority issues fees notice
... ...
Wednesday 10th payment received
Thursday 11th 3rd working day, etc.

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.

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Refunds

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 Freedom of Information 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.

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Requests costing more than the appropriate limit

If a request would cost more than the appropriate limit to answer, the public authority is not obliged 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 write back to the applicant and consider discussing it with them to see if the question could be refined, or resubmitted in part, to bring it below the appropriate limit.

If after providing advice and assistance as required under section 16, the request would still cost more than the appropriate limit to answer, the authority must inform the applicant of this no later than the 20-day limit for answering requests. It then has a number of options:

  • it can decide not to provide the information
  • it can answer and charge a permitted fee
  • it can answer without charging.

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Charging a fee when the appropriate limit is exceeded

Section 13 of the Act provides a power for public authorities to charge fees when they choose to reply to a request that they do not have to comply with 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.

Where section 13 is not relied on, but authorities are relying on other powers to charge it is those powers which will determine how much can be charged and any applicable maximum.

Note that freedom to charge, whether under Section 13 or other powers, does not apply 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 when deciding whether the appropriate limit is engaged under the Freedom of Information Act.

For example, an authority has existing powers under other legislation to charge where the appropriate limit has been exceeded. It chooses under these powers 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.

  • It must calculate whether the appropriate limit has been exceeded using the standard rate of £25 per hour, ie £25 x 25 = £625.
  • As the appropriate limit has been exceeded, if it chooses to answer the request, it can charge for the information at its rate of £30 per hour ie £30 x 25 = £750.

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Calculating the maximum fee when relying on section 13

Where section 13 does apply, Regulation 7 states 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. If the costs exceed the appropriate limit, the maximum charge is the sum of:

  • the costs which the authority was entitled to take into account in calculating that the appropriate limit was exceeded (see explanation of Regulation 4(3) above) and
  • the costs of informing the requester whether the information is held, and of communicating the information to the requester. When the appropriate limit is exceeded, these costs can also include the cost of staff time in carrying out these activities (calculated at a flat £25 per hour).

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), 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.

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. But it does not include cases where the public authority neither confirms nor denies that it holds information.

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.

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Fees and information that is exempt under the Freedom of Information Act

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 freedom of information fees regime.

Section 21 of the Act provides that information is exempt if it is 'reasonably accessible' to the applicant otherwise than under section 1. Information will always be considered reasonably accessible if:

  • the authority is obliged to communicate it to the applicant under some other Act, or
  • the information is made available in accordance with the authority's publication scheme.

Authorities can 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 (which must be approved by the Information Commissioner). 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).

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Organisations currently providing information in return for a fee

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. If information is made available under a separate enactment or through an authority's publication scheme, it is exempt from freedom of information and from its costs and charging regime.

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.

Section 22 of the Act exempts authorities from providing information if it is intended for future 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.

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Value Added Tax

If an authority is asked for information, and the information is only available from that authority or another public authority, any fees charged would not attract Value Added Tax (VAT).

If an authority is asked for information that is available from another source that is not a public authority, any fees would attract VAT.

Fees charged for information that is provided in accordance with a public authority's publication scheme will attract VAT.

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

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Central government treatment of freedom of information receipts in National Accounts

HM Treasury has issued guidance that departmental resource accounts will treat any receipts generated from charging for freedom of information requests as income.

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.

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.

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Mixed requests

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. More detailed guidance on this is provided for in the procedural guidance.

Public authorities must separate out the 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 Freedom of Information Act applies, then the maximum fee will be the sum of the maximum subject access fee under the Data Protection Act and the maximum fee for providing the remainder of the information calculated under the freedom of information regime.

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 freedom of information 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.

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Charging for reuse of disclosed information

Whether or not a public authority charges for disclosure of information (either under section 9 or section 13 of the Act), the question of whether it may 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 extra powers to charge for the reuse 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.

Much information supplied under the Freedom of Information Act will be subject to copyright protection under the Copyright, Designs and Patents Act 1988 (whether Crown copyright or third party copyright). Information can be reused 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 reuse the information for commercial purposes, including publishing, he or she would require the permission of the copyright holder. Permission to reuse copyright information is granted in the form of a licence.

The EU Directive on the reuse of public sector information seeks to encourage the reuse of documents produced by the public sector. It was implemented in 2005 as the Reuse of Public Sector Information Regulations 2005 (SI 2005/1515). Under the Regulations, public authorities can charge for the reuse 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 reuse should be offset against any already made under freedom of information in order to avoid double charging.

More information on the Reuse of Public Sector Information Regulations is available on the Office of Public Sector Information website.

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Aggregation

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.

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

  • two or more requests for information must have been made to the same public authority
  • they must be either from the same person, or from 'different persons who appear to the public authority to be acting in concert or in pursuance of a campaign' (section 12(4)(b) of the Freedom of Information Act)
  • the requests must relate to the same or similar information
  • they must have been received by the public authority within a space of 60 consecutive working days.

This provision is intended 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.

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Worked examples

Example 1

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.

Example 2

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.

Example 3

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.

  • The authority could aggregate requests A and B for the purposes of calculating whether the appropriate limit had been exceeded in either case. It could also aggregate requests B and C in the same way.
  • It could not aggregate requests A and C, nor could it aggregate all three requests, as they were received over a longer period than 60 working days.
  • It can only ever charge by reference to the costs of the individual case in question. So if requests A and B, and then B and C were aggregated, each request would only be charged for once (ie the person making request B would not be charged twice).

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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Notes

1. Mr John Jenkins v the Information Commissioner and the Department for Environment, Food and Rural Affairs (EA/2006/0067) (2 November 2007)

2. Tribunal decision: Mr John Jenkins v the Information Commissioner and the Department for Environment, Food and Rural Affairs (EA/2006/0067) (2 November 2007)

3. Mr M L Johnson v the Information Commissioner and the Ministry of Justice (EA/2006/0085) (13 July 2007)

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