Fees that may be charged when the cost of compliance exceeds the appropriate limit

Latest updates - 13 November 2023

13 November 2023 - Stylistic changes only.

About this detailed guidance

This guidance explains what fees you can charge where the cost of compliance with a request exceeds the appropriate limit. Read it if you have questions not answered in the Guide, or if you 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 the FOIA say?
• What charges can we make where the request exceeds the appropriate limit?
• How do we calculate whether the request exceeds the appropriate limit?
  
  • Communication costs
  • Redaction
  • Format
  • Staff time
• Practical points
  
  • Alternative means of obtaining the requested information
  • Fees Notices
  • Payment
  • VAT
• 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 cost of complying with the request would exceed the appropriate limit, then you do not need to comply with it. But if you choose to do so, you can charge a fee. The fee that you can charge in these circumstances allows you to recover a greater proportion of the costs incurred than when the request does not exceed the appropriate limit. This is provided for by section 13 of FOIA.

What does FOIA say?

Section 13(1) – (3) are as follows:

13. — (1) A public authority may charge for the communication of any information whose communication –

(a) is not required by section 1(1) because the cost of complying with the request for information exceeds the amount which is the appropriate limit for the purposes of section 12(1) and (2), and
(b) is not otherwise required by law

such fee as may be determined by the public authority in accordance with the regulations made by the Minister for the Cabinet Office.

13. — (2) Regulations under this section may, in particular, provide-

(a) that any fee is not to exceed the maximum as may be specified in, or determined in accordance with the regulations, and
(b) that any fee is to be calculated in such manner as may be prescribed by the regulations.

13. — (3) Subsection (1) 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 for the purposes of section 13 are the Fees Regulations.

What charges can we make where the request exceeds the appropriate limit?

If you choose to answer a request which exceeds the appropriate limit, regulation 7 of the Fees Regulations allows you to charge for:

• the costs which may be taken into account when calculating if the request exceeds the appropriate limit;
• the communication costs (including the costs of communicating if you hold the information, even if you are not providing it); and
• staff time spent on communicating the information.

How do we calculate whether the request exceeds the appropriate limit?

You should refer to our guidance on section 12, requests where the cost of compliance with a request exceeds the appropriate limit, for further details on which activities you can consider in deciding whether the request exceeds the appropriate limit.

Communication costs

You can charge for the reasonable costs you expect to incur in:

• contacting the applicant to inform them that you hold the requested information (even if you are not providing the information); and
• communicating the information to the applicant.

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 FOIA where the applicant has expressed a preference for the means of communication and where this is reasonably practicable.

Redaction

You can charge for 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.

Format

You must not charge for providing the information in the requested format where you are already subject to a statutory obligation to do so.

For example, you must not charge for the costs of translating information into Welsh if 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).

Staff time

You can charge for the time taken by staff on the activities included in communicating the information.

Regulation 7(5) states that you should charge staff time at the flat rate of £25 per hour. This is irrespective of whether a higher rate is actually incurred by internal staff or charged by external contractor staff.

You can also charge for the time it takes a member of staff to actually redact the exempt information. You can include this cost because it is part of the costs of communicating the information under regulation 7. Regulation 7(5) of the Fees Regulations confirms that a public authority can only charge £25 per hour for this activity. For example, if it takes one employee 45 minutes to redact the information, then the public authority can charge £18.75 for this activity.

For the avoidance of doubt, you cannot take any staff time spent redacting exempt information into account when initially estimating whether it would exceed the appropriate limit to comply with the request.

Practical points

Alternative means of obtaining the requested information

Section 13(3) of 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 the supply of 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. Further guidance on this exemption is available in Information reasonably accessible to the applicant by other means.

Fees notices

If complying with a request would exceed the appropriate limit, you do not need to comply with it. You must, however, issue a refusal notice stating that you’re relying on section 12.

As a matter of good practice, if you are offering to provide the information for a fee then we advise you to issue a fees notice.

There is no statutory requirement to do this, because you’re not obliged to comply with a request when section 12 applies. However, it is normally the easiest way of letting the requester know that they have the option of receiving information if they pay a fee.

As a matter of good practice, a public authority should also aim to provide a fees notice as soon as possible and at least within the 20 working day period for responding to the request. It therefore makes sense to include the fees notice with the refusal notice.

Payment

The Commissioner is likely to follow the same approach as set out in section 9 about paying a fee. Accordingly, if you do not receive payment within three months of issuing a fees notice, it’s reasonable to conclude that the applicant no longer wishes to pursue their request and treat the matter as closed. It is helpful to refer to this deadline in the fees notice.

Where a requester has indicated that they are not prepared to pay the fee, it is good practice to consider whether there is any information which may be of interest that is available without charge.

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 can add VAT to the fee.

Case example

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 under the FOIA dataset provisions is in addition to any charge that you make (under section 13 of FOIA and regulation 7 of the Fees Regulations) for communicating the information. If you are also issuing a fees notice for communicating the information, 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.

For further information on datasets and re-use, see our guidance document on datasets and our Guide to RPSI.