The fees regulations under FOI broadly cover 2 areas- (1) Fee charges for information provided through the publication scheme and (2) fee charges for specific information requests.
(1) Fee charges for information provided through the publication scheme
In accordance with The Freedom of Information Act 2000 (FOIA) at S.19(2) if the information is available through the publication scheme, the public authority is free to decide whether to charge for it or not and can set its own charges. However, the caveat to this is that FOI did not intend to provide public authorities with a means of financially profiting from the release of information and as such the Information Commissioner's Office has produced guidance as to what needs to be considered when setting the charges and this can be found in the publication scheme guidance on the ICO website.
The guidance includes the view that charges should be compatible with promoting public access should be able to be justified and based on a transparent and publicly available charging policy. The ICO considers high charging levels as contrary to promoting public access to official information. In addition a charge may be taken into consideration in deciding whether information is reasonably accessible under S.21 of the FOIA. In short the ICO expects that for much of the information which is routinely made available there will be either minimal or no cost.'
It should be noted that the Information Commissioner guidance is not legally binding. However it is expected that the ICO would reach any decision as to whether costs were excessive and a barrier to the provsion of information from the viewpoint of the guidance. It is up to each institution to judge whether, in the light of all the information including the negative publicity that may result from too high charges, their information charges have been set at a reasonable level.
(2) Fee charges for specific information requests for information not available through the publication scheme
The amount an institution in England, Wales and NI (it is different for Scotland - see separate guidance) may charge is set out in the fees regulations.
In broad terms if the cost of compliance falls under £450 information not available through the publication scheme or elsewhere should be provided to the applicant at no cost other than the permitted 'communication costs' or 'disbursements' associated with providing the information, limited in practice to copying, printing and postage costs. It is often the case that public authorities opt to make no charge where these costs are low.
The regulations set out how the costs should be calculated in order to estimate whether the cost of complying with an information request falls within the £450 limit. An institution can take into consideration the cost of:
- Determining whether it holds the information requested
- Locating the information
- Retrieving such information or documents
- The cost of staff time associated with these activities (currently calculated at £25 per hour)
Time spent considering whether or not information is exempt from release cannot be taken into account and neither can the cost of the time spent editing the requested information to remove exempt material (redacting) prior to release.
Where the cost of compliance exceeds the limit an institution is not obliged to provide the information and should inform the applicant by issuing a Refusal Notice. An institution may however opt to provide the requested information. In such cases, unless the information will be provided free of charge, an institution should issue a Fees Notice informing the applicant of the fees to be charged for providing the information. The maximum fee that can be charged in such circumstances is the sum of:
- the costs which a public authority may take into account in calculating that the appropriate limit was exceeded (as above); and
- the communication costs; and
- staff time, at £25 per hour per person, spent on the activities included under communication costs
The ICO has published guidance on using the fees regulations.