Part 4 – Fees and Appropriate Limit Regulations 2004
The Freedom of Information and Data Protection (Fees and Appropriate Limit) Regulations 2004 (Fees Regs) came into effect on 1 January 2005. The Fees Regs provide the framework for setting the maximum fee that can be charged when complying with a request for information under the FOIA. In the majority of cases, The Service will not charge any fee for providing information for an FOIA request. Where there is the likelihood that complying with an FOIA request will exceed the limit specified in the Fees Regs, the matter should be referred to the FOI/DPA Liaison Officer in Technical Section. [note 1]
Under section 9 of the FOIA a public authority intending to charge a fee for providing information in response to a request must issue a fees notice to the applicant. The notice must specify the fee that is being charged by the authority in complying with a request made under section 1 of the Act. [note 2]
The fee specified in the notice cannot be more than either the maximum fee permitted by Regulation 6 Fees Regs (the costs of informing the applicant whether the information is held and communicating the information) or a fee permitted by other legislation. If the administration costs of collecting any fee would be more than the charge itself, the charge should be waived.
The fees notice must be issued within the 20 working day period for responding to the request (15 days to keep within The Service guidelines). As a matter of good practice any fees notice should be issued as soon as possible following receipt of the request.
The period from the day the fees notice is issued to the day the fee is received does not count towards the working days limit for response.
If the authority does not receive payment within three months of issuing a fees notice it is no longer obliged to respond to the request. This time limit should be quoted in any fees notice issued.
If payment is made by cheque, The Service should wait until the cheque has cleared. However, The Service cannot defer the paying in the cheque in order to delay the response, and must ensure that the cheque is presented for payment promptly.
If the actual cost of answering a request is higher than the fee specified in the fees notice, The Service cannot issue a second notice and must bear the additional cost itself. However, if costs are lower than those specified in the notice, The Service will refund the excess amount to the applicant where practicable.
Where compliance with a request would exceed the appropriate limit there is no obligation upon The Service to comply with the request and The Service is not required to issue a fees notice. If a decision is made to proceed with a request which exceeds the appropriate limit and The Service wishes to charge a fee for the information, a fees notice should be issued.
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. [note 3]
The Fees Regs state that this cost limit is £600 for central government departments and agencies.
The Service must still confirm or deny whether it holds the information requested unless the cost of this alone would exceed the appropriate limit. The figure of £600 relates to the ‘appropriate limit’ not to the fee that may be charged.
A template for responding to requests under this section is available HERE.
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:
The four activities are sequential, covering the retrieval process of the information from The Service's storage agents.
The Service can take into account the costs attributable to the time that persons (both staff and external contractors) are expected to spend on these activities. Such costs are calculated at £25 per hour per person regardless of the actual cost or rate of pay, which means that the limit will be exceeded if these activities exceed 24 hours for The Service. Where a reasonable estimate has been made that the appropriate limit would be exceeded, there is no requirement for The Service to undertake work up to the limit.
The IC 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.
Where staff refuse a request because the appropriate limit has been exceeded, there is still a duty under section 16 of the FOIA to advise and assist an applicant, by providing information on how the estimate has been arrived at and provide advice as to how the request could be refined or limited to come within the cost limit. [note 4]
(Amended December 2010)
Section 12(4) states that the SoS may by regulations provide that where two or more requests for information are made by one person, or by different persons who appear to the public authority to be acting in concert, or in pursuance of a campaign, then the estimated cost of complying with any of the requests is to be taken to be the estimated total cost of complying with all of them.
The Fees Regs state that two or more requests to one public authority can be aggregated for the purposes of calculating costs if they are:
So called ‘mosaic requests’ rely on a number of small requests that fall within the cost limit individually, and where the information forms part of a much larger request that would be exempt under the costs limit. Staff suspecting such request should refer to Technical Section for advice.
The FOIA recognises that some public authorities are able to charge fees for supplying information on another statutory basis. In such cases the Fees Regs 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, even if such a charge would be in excess of the fees which would apply under the Fees Regs. [note 5]
These provisions do not currently apply to any part of The Service.
Further information on the application of the Fees Regs with examples may be found in the ICO guidance leaflet available HERE.