Fees that may be charged when the cost of compliance does not exceed the appropriate limit

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Latest updates - 13 November 2023

13 November 2023 - stylistic changes only.

About this detailed guidance

This guidance explains what fees you can charge under section 9 of FOIA for communicating information to the requester where the cost of complying with their request has not exceeded the appropriate limit. Read it if you have questions not answered in the Guide, or if need a deeper understanding of how section 9 works in practice.

In detail

• What’s the relevance of the appropriate limit to what we can charge?
• What does FOIA say?
• What can we charge when the costs of compliance do not exceed the appropriate limit?
• Practical points
  • VAT
  • Timescales
  • Payment
  • Alternative means of obtaining the requested information
• Datasets

What’s the relevance of the appropriate limit to what we can charge?

The amount that you may charge depends on if the cost of complying with the request has exceeded the appropriate limit. The appropriate limit is established under section 12 of FOIA and is calculated in accordance with The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 SI No. 3244 (known as the Fees Regulations). More information on how to calculate whether the request would exceed the appropriate limit is available in our guidance on section 12.

Where the estimated costs of complying with a request would not exceed the appropriate limit, then you must provide the information unless an exemption applies. However, you can charge for complying with the request. The amount that you can charge is determined by section 9 of the Act.

What does FOIA say?

Section 9

(1) A public authority to whom a request for information is made may, within the period for complying with section 1(1), give the applicant a notice in writing (in this Act referred to as a “fees notice”) stating that a fee of an amount specified in the notice is to be charged by the authority for complying with section 1(1).

(2) Where a fees notice has been given to the applicant, the public authority is not obliged to comply with section 1(1) unless the fee is paid within the period of three months beginning with the day on which the fees notice is given to the applicant.

(3) Subject to subsection (5), any fee under this section must be determined by the public authority in accordance with regulations made by the Minister for the Cabinet office.

(4) Regulations under subsection (3) may, in particular, provide –

(a) that no fee is to be payable in prescribed cases,
(b) that any fee is not to exceed such maximum as may be specified in, or determined in accordance with, the regulations, and
(c) that any fee is to be calculated in such a manner as may be prescribed by the regulations.

(5) Subsection (3) does not apply where provision is made by or under any enactment as to the fee that may be charged by the public authority for the disclosure of the information.

The relevant regulations referred to in section 9 are the Fees Regulations.

Regulation 6(2) of the Fees Regulations provides that you can charge for the costs you reasonably expect to incur in:

• informing the requester whether you hold the requested information (even if you are not providing the information); and
• communicating the information to the requester.

If you wish to charge for such costs you must send the requester a fees notice. This notice must state the amount you’re going to charge and advise the requester how they can pay.

What can we charge when the costs of compliance do not exceed the appropriate limit?

Regulation 6(3) states that this includes, but is not limited to, the costs of:

• reproducing any document containing the information, eg printing or photocopying;
• postage and other forms of transmitting the information; and
• complying with section 11 of FOIA where the applicant has expressed a preference for the means of communication and where this is reasonably practicable.

These costs are referred to as ‘communication costs’ or disbursements. They are limited to the expenses that you will actually incur.

However, you should note that regulation 6(4) prevents you from charging for staff time (either your own staff or contractors) in carrying out these activities. This means that you should not include staff time as a disbursement, even where you would consider it as an ‘administration’ or ‘handling’ fee.

Practical points

You can only charge for the costs you will incur in disclosing the information if the requester paid the fee. In other words, you cannot charge the requester a fee based on the cost of providing the information and then, when you receive payment, state that you cannot disclose the information because of an exemption.

As a matter of good practice, if the administration costs of collecting a fee would be more than the charge itself, you could waive the charge.

If the actual cost of answering a request is higher than the fee specified in the fees notice, you should not issue a second notice. Instead, you will have to bear the additional cost yourself.

However, if the actual costs are lower than those specified in the fees notice, we recommend as a matter of good practice that you refund the excess amount.

Items which you cannot include in the fee

You should not charge for providing the information in a particular format if you already have a statutory obligation to do so.

For example, you should not charge for the costs of translating information into Welsh where you are already required to do so under the Welsh Language Act 1993.

Similarly, you cannot charge for the costs of putting the requested information into an alternative format. For example, if you need to reformat the information into Braille, large print or on an audio tape to meet the requirement to make reasonable adjustments for disabled persons under the Equalities Act 2010, you can’t charge for this.

This is different to the costs of complying with a preferred means of communication for the purposes of section 11. You can charge for this – see regulation 6(3).

You cannot take into account the time taken by staff in removing any exempt information.

Items which you can include in the fee

You can include the costs of physically redacting exempt information. This could include:

• the costs of materials, for example tape or black ink; or
• the use of specialist equipment (for example, rental or licensing) specifically for redaction.

VAT

Whether or not you can charge VAT depends on whether the information is only available from you (or another public authority). If the requested information is only available from a public authority, any charges would not attract VAT.

However, if the requested information is available from another source that is not a public authority, you may add VAT to the fee.

Timescales

You must issue the fees notice within the 20 working day period for responding to the request. As a matter of good practice, we recommend that you issue the fees notice as soon as possible after you receive the request.

Section 10(2) of the FOIA states that the time for compliance should not include the period beginning with the day on which the public authority gives the fees notice to the applicant and ending with the day on which they receive the fee.

Payment

If you do not receive payment within three months of issuing a fees notice, you no longer have to respond to the request. You should tell the requester about the deadline in the fees notice.

When a requester pays by cheque, you may choose to regard the fee as being received on the day the cheque is received, or you may wait until the cheque has cleared. However, you should not delay paying the cheque into your bank account in order to delay providing the response.

Where a requester has indicated that they are not prepared to pay the fee, it is good practice to consider whether you can release any relevant information without charge.

Alternative means of obtaining the requested information

Section 9(5) of the FOIA recognises that you may be able to charge fees for supplying information on another statutory basis. In such cases, the Fees Regulations will not apply and you can charge in accordance with the alternative regime, even if this would exceed what you could charge under the Fees Regulations.

For example, the National Archives can charge a search fee, and other fees, for supplying information in various formats (as well as other services) under the Public Record Office Fees Regulations.

In some cases, applying an alternative charge via another piece of legislation may also indicate that a separate access regime exists for that particular type of information. FOIA should not circumvent other access regimes and a public authority may wish to consider whether section 21 is applicable.

Datasets

FOIA contains provisions dealing with fees for the re-use of datasets. A dataset is a collection of factual raw data, in electronic form, that you gather while providing services and delivering your functions. If you are providing information in response to a request, you hold that information as a dataset and the requester wants an electronic copy, then you must provide the dataset in a re-usable form so far as reasonably practicable.

If the dataset is covered by the Re-use of Public Sector Information Regulations 2015 (RPSI), then licensing the dataset for re-use, and any charges for allowing re-use, must be dealt with under the terms of RPSI. If it is not covered (for example, because you are not a public sector body for the purposes of RPSI), then you should deal with licensing and re-use under the terms of the dataset provisions in FOIA.

Any fee for allowing the re-use of a dataset is in addition to any charge that you make (under section 9 of FOIA and the Fees Regulations) for communicating the information. If you are also issuing a fees notice under section 9(1) of FOIA, you can combine this with the re-use fees notice, but you cannot ‘double-charge’ for the same activities.

There is no fee if you are making the dataset available for re-use under the Open Government Licence.