Requests where the cost of compliance exceeds the appropriate limit (section 12)

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Latest updates - 13 November 2023

13 November 2023

• Producing an estimate of costs

Upper Tribunal’s decisions explains the need to produce an estimate when relying on section 12 and to clarify the level of precision required when producing one.

Another Upper Tribunal’s decision explains that the estimate should be based on how you actually hold your records, even if this falls below your obligation under other legislation.

• What costs can be included

Tribunal cases provide examples of the costs involved in extracting information to compile statistics, including when doing requires the creation of computer query to extract the requested information.

• Sensible and realistic estimates

There’s discussion of why estimates should not be based on the assumption that it will be necessary to search all records held to determine whether the requested information is held.

• Aggregating requests

A tribunal decision explains the difficulty of trying to define what’s meant by the ‘same or similar information’ when considering whether requests can be aggregated.

The examples under ‘Time at which to apply section 12 for aggregated requests’ have been revised to better explain the Commissioner’s position.

• Deleted information

There is new section on ‘What’s the relevance of section 12 to deleted information’. It’s rare that you’ll need to search back-up tapes or recycle bin. But if you do, the guidance explains what costs can be included in your estimate.

• Advice and assistance

The section on advice and assistance has been updated to emphasise the value in providing good advice when refusing a request under section 12.

About this detailed guidance

This guidance discusses section 12 of FOIA. This provision allows public authorities to refuse a request where it’s estimated that the cost of complying would exceed a set limit. This is called the appropriate limit. The guidance is written for public authorities. Read it if you have questions not answered in the Guide, or if you need a deeper understanding to help you apply this provision in practice.

In detail

• What does section 12 say?
• How does section 12 operate and how does it fit into other parts of FOIA?
• What is the appropriate limit?
• Do we have to produce an estimate?
• What is meant by an estimate?
• Is the estimate based on how we actually hold our records?
• What can we include when estimating the costs of complying with a request?
  • Staff time
  • What activities can’t we include?
  • Costs other than staff time
• What is a reasonable estimate?
  • ‘Sensible and realistic’
  • Estimates and searches
  • Sampling exercises
  • Providing ‘cogent evidence’
• Can we aggregate the cost of a number of requests?
  • ‘Two or more requests’
  • ‘Same or similar information’
  • ‘Requests received within 60 consecutive working days’
• Time at which to apply section 12 for aggregated requests
• The ‘neither confirm or deny’ provision under section 12
• What’s the relevance of section 12 to deleted information?
• Do we need to provide advice and assistance?
  • What if there’s no meaningful advice that we can provide?
  • If we fail to provide advice and assistance does this invalidate our reliance on section 12?
  • Should we treat any refined request as a new request?

What does section 12 say?

Section 12(1) – (4) are as follows:

12. — (1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

(2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.

(3) In subsections (1) and (2) “the appropriate limit” means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases.

(4) The Minister for the Cabinet may by regulations provide that, in such circumstances as may be prescribed, where two or more requests for information are made to a public authority-

(a) by one person, or
(b) by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign,

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.

(5) The Minister for the Cabinet Office may by regulations make provision for the purposes of this section as to the costs to be estimated and as to the manner in which they are to be estimated.

How does section 12 operate and how does it fit into other parts of FOIA?

Section 12(1) allows you to refuse to comply with a request where you estimate that the cost of compliance would exceed a set amount. This is known as the appropriate limit. In most cases the costs you’re likely to incur are staff time in searching for the requested information.

Section 12(2) means that you must inform the applicant whether you hold the information they’ve requested, unless even doing this would exceed the limit. Therefore when applying section 12, you should be clear when responding to the applicant what your position is, ie whether it would exceed the appropriate limit to determine whether you hold the information, or if you have established that you hold the information, but it would exceed the limit to gather it.

Under section 12(3), different public authorities can have different cost limits. For some, generally central government, the limit is £600. For all other public authorities, the limit is £450. These limits are set out in The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulation 2004 SI 2004 No 3244, which are created under section 12(5). They are generally known as the ‘Fees Regulations’.

As well as setting out the actual limits, the Fees Regulations explain what activities you can take into account when estimating the cost of compliance. Those activities are limited to:

• determining whether you hold the information;
• locating that information or a document which may contain the information;
• retrieving the information or a document containing it; and
• extracting the information from a document containing it.

Where the costs of compliance concern the time spent on these activities, you must estimate those costs at a rate of £25 per hour. Again, this is set out in the Fees Regulations.

The Fees Regulations also give effect to section 12(4) by establishing the rules for aggregating the costs of multiple requests made by one person, or a group of people acting together.

In line with your section 16 FOIA requirements, if you refuse a request under section 12, you will usually have to provide advice to the applicant. The objective of the advice and assistance is to help the applicant make a new, refined request which doesn’t exceed the appropriate limit.

Where a request raises concerns over cost your overall approach should be to estimate whether the cost would exceed the appropriate limit. If it would, you should refuse it under section 12. When doing so, you can provide advice and assistance, possibly using the calculations on which you based your estimate. This should allow the applicant to understand how and why their original request would exceed the appropriate limit. They should then be well placed to make a fresh request for a more limited amount of information, but targeting the information they are most interested in.

Under the Fees Regulations, you cannot take account of the time involved in considering whether any of the information is protected by an exemption.

However, where the potential costs in complying with a request would impose a grossly oppressive burden, but are not those relevant when considering the appropriate limit, you may wish to consider whether those costs make the request vexatious. You should pay close attention to our guidance on this matter, as set out in Dealing with vexatious requests (section 14).

What is the appropriate limit?

Regulation 3 of the Fees Regulations sets out that the appropriate limit for central government, legislative bodies and the armed forces (in other words, those bodies covered by Part I of Schedule 1 of the Act) is £600.

For all other public authorities, the appropriate limit is £450.

Regulation 4(4) states that the cost of the time which you expect to spend dealing with the request must be estimated at a rate of £25 per hour.

This means that if you are a central government body, a legislative body or the armed forces, the request would exceed the appropriate limit if complying would take more than 24 hours of work. If you are any other public authority, the request would exceed the appropriate limit if complying would take more than 18 hours.

Do we have to produce an estimate?

Yes. The Upper Tribunal in Reuben Kirkham v Information Commissioner [2018] UKUT 126 (AAC) 11 April 2018, explained at paragraph 18 that if a public authority, “… did not make an estimate, it is not entitled to rely on this section, as the existence of an estimate is a precondition for the application of the section.”

What is meant by an estimate?

An estimate is more than just a guess or an assertion. As the Information Tribunal in Roberts v IC EA/2008/0050 4 December 2008 explained,

“It requires a process to be undertaken which will involve an investigation followed by an exercise of assessment and calculation.”

The estimate does not have to show the exact costs of complying with the request. It simply has to be robust enough to establish whether the request would exceed the appropriate limit. This can only be determined on a case by case basis. In some cases, a quick calculation will be all that’s needed to show that the cost would clearly be above or below the limit. But in other more borderline cases, a more detailed estimate is required.

As the Upper Tribunal explained in Kirkham v IC [2018] UKUT 126 (AAC), 11 April 2018,

“24. … the method employed must be capable of producing a result with the precision required by the legislation in the circumstances of the case. The issue is whether or not the appropriate limit would be reached. The estimate need only be made with that level of precision. If it appears from a quick calculation that the result will be clearly above or below the limit, the public authority need not go further to show exactly how far above or below the threshold the case falls.

Regardless of the precision required, the estimate must be reasonable. That is, it must be “….sensible, realistic and supported by cogent evidence”, as explained by the Information Tribunal in the case of Randall v Information Commissioner and Medicines and Healthcare Products Regulatory Agency (EA/2007/0004, 30 October 2007). A number of Upper Tribunals have accepted this approach.

What we mean by a ‘reasonable’ estimate is discussed in more detail later, in our section on What is reasonable estimate?.

Is the estimate based on how we actually hold our records?

Yes. You should base the estimate on how you hold the records at the time of the request or up to the statutory time for compliance (usually 20 working days from the date of the request). This applies whether your records management represents good practice or not, or even whether it complies with other legislative requirements. This has been established by a number of Upper Tribunal decisions.

The UT in Kirkham took the same approach, stating at paragraph 19 that, “The cost of compliance will be related to the way that the authority holds the information.”

However later in the same paragraph, Judge Jacobs sounded a cautionary note. He said that the situation might be different if a public authority had, “deliberately distributed the information in a way that would always allow it to rely on section 12.”

You should also remember that if the Commissioner finds poor records management when investigating a complaint, the decision notice could contain adverse comments. Our decision notices are issued and subsequently published on our website.

Furthermore, under section 46 of FOIA, there is a statutory code of practice on records management. This sets out the standard of record keeping considered acceptable for public authorities to adopt. The Commissioner can issue practice recommendations if he considers you are not conforming to the code. Our guidance ‘Section 46 Code of Practice – records management’ explains the benefits of complying with the code and the consequences of not doing so in more detail.

What can we include when estimating the costs of complying with a request?

Regulation 4(3) of the Fees Regulations states that you must only take into account the costs you reasonably expect to incur in carrying out permitted activities in complying with the request, which are:

• determining whether you hold the information;
• locating the information, or a document containing it;
• retrieving the information, or a document containing it; and
• extracting the information from a document containing it.

Staff time

It is likely that any estimate will be largely, or completely, made up of the costs of staff time in carrying out the permitted activities. The cost of staff time is estimated at a rate of £25 per hour.

Even if you use contract or external staff to carry out some or all of the permitted activities, you can only include their time at the rate of £25 per hour. This is irrespective of the actual cost charged or incurred.

It’s not uncommon for requests to seek statistical information. For example, in Johnson v Information Commissioner and Ministry of Justice (EA/2006/0085), 13 July 2007, the Information Tribunal considered a request made to the Ministry of Justice (MoJ). The request was for the number of claims struck out by each Queen’s Bench Master in the preceding four years. The Tribunal was satisfied that the MoJ held the information. However, they could only obtain the information by searching through each of the thousands of claims made over that period. Staff would then need to identify and count up those which had been struck out and by whom (this is often referred to as extracting the ‘building blocks’, see our guidance on Determining whether we hold information). The MoJ had to calculate the cost of extracting the building blocks to compile the requested information at £25 per hour. Therefore, even if you hired external contractors to do the work at an hourly rate that exceeded £25, you could still only base your estimate on an hourly rate of £25.

In the MoJ case above, the actual process of extracting the requested information was quite straightforward, if laborious. However, in other cases, the process of extracting the requested information from various sources can be far more complicated.

The Home Office case was decided very much on the particular facts of the case. However, it illustrates how the cost of compliance is dependent on how you hold the information. In the Home Office case, they required a new computer query to extract the information. It’s also notable that the FTT significantly reduced the amount of time attributed to running the query. This demonstrates that, even where it's accepted certain tasks are part of the extraction process, the time allocated to carrying out those tasks has to be reasonable. The case also demonstrates how the more borderline the case is, the more precise your estimate has to be.

What activities can’t we include?

The activities listed in reg 4(3) relate to the information that’s been requested. It doesn’t cover the information you ultimately decide to disclose. This means that you cannot include the time taken, or likely to be taken, in considering whether any exemptions apply.

You also can’t take account of the time likely to be taken in removing any information which you decide is exempt (often referred to as ‘redacting’ the exempt information).

This approach has been confirmed by the Information Tribunal in the case of The Chief Constable of South Yorkshire Police v the Information Commissioner (EA/2009/0029, 14 December 2009) and also by the High Court on appeal ([2011] EWHC44 (Admin)).

There may be situations where the costs of dealing with a request would impose a grossly oppressive burden on you, but those costs are not covered by the Fees Regulations. In such circumstances, you may wish to consider whether the cost makes the request vexatious. However, you should read our guidance on dealing with vexatious requests: Dealing with vexatious requests (section 14).

Costs other than staff time

Sometimes, you may expect to incur costs other than staff time when carrying out the permitted activities. The key to deciding whether or not you can include these costs in the estimate is whether it would be reasonable to do so.

For example, if you can show that your existing software is unable to do the job, but that you could purchase other specialist software which would allow you to retrieve the requested information, then you could include the cost of that software in the estimate. In such cases, the Commissioner would expect you to have evidence to support your estimate of the software’s cost if we received a complaint.

If you use a commercial off-site storage, it will depend on the terms of your contract as to whether you can include the costs of locating, retrieving and transporting the information from deep storage in the estimate. The Commissioner may want to see the contract to confirm that you can correctly include such costs.

 

What is a reasonable estimate?

You do not need to make a precise calculation of the costs of complying with a request. Only an estimate is required. However, the Commissioner considers that the estimate needs to be reasonable, both in terms of the activities required to identify, locate and retrieve the information and also the costs attributed to those activities.

This is in line with Randall v Information Commissioner and Medicines and Healthcare Products Regulatory Agency (EA/2007/0004, 30 October 2007), which stated that a reasonable estimate is one that is “….sensible, realistic and supported by cogent evidence”.

This approach has been accepted by the Upper Tribunal in a number of cases including Commissioner of Police for the Metropolis v Information Commissioner and Mackenzie [2014] UKUT 479 (AAC).

You must also undertake the exercise of producing an estimate in good faith, as set out in Alasdair Roberts v IC (EA/2008/0050, 4 December 2008).

‘Sensible and realistic’

A sensible and realistic estimate is one that is based on the specific circumstances of the case. In accordance with Fees Regulations, it must only include amounts for tasks that you reasonably expect to perform. The amounts you attribute to carrying out those tasks also have to be reasonable, as laid out in Reuben Kirkham v Information Commissioner [2018] UKUT 126 (AAC) 11 April 2018.

The estimate should not be based on general assumptions, for example, that all records would need to be searched, as such an approach would inevitably inflate the estimate, meaning that many requests could be refused under section 12. Estimates produced on such a basis are not reasonable.

Where you are considering whether it would exceed the appropriate limit just to determine whether you hold the information, you should remember that in disputes over whether information is held, the test is whether you hold it on the balance of probabilities. Therefore you should base your estimate on the necessary searches to satisfy that standard of proof. Again, you would not be required to search through all your records to prove absolutely that you did not hold the information.

An estimate that includes the cost of searching in places where you are unlikely to hold the information would not be reasonable. As explained in the closing paragraph of Muttitt v IC and the Cabinet Office (EA/2011/0036, 31 January 2012):

“A search should be conducted intelligently and reasonably. If the Cabinet Office or any other public authority maintains a refusal of FOIA disclosure based on s12, where the costs estimate includes the costs of looking in unlikely places where the information is not expected to be held, we would expect the Commissioner and the Tribunal to decide that s12 is not properly engaged …” (paragraph 68)

Therefore, you need to think about your search strategy. For example, staff from the relevant business area could direct you to where you hold the information.

There may well be different ways to search for the requested information. This does not mean that you have to consider every possible means of obtaining the information to produce a reasonable estimate. However, an estimate is unlikely to be reasonable where an authority has failed to consider an obvious and quick means of locating, retrieving or extracting the information.

However, an obvious search strategy in one case may not be appropriate in another. For example, in some cases, those involved in the event or meeting linked to the request will have knowledge of what information you hold and could direct you to it. However, this may not be appropriate if a similar request is made to another organisation where there is a high staff turnover. Similarly, it would not work if the event was not as high profile or memorable within that organisation. In such cases you may need to undertake a more laborious search. You should consider what constitutes a reasonable estimate on a case by case basis.

Estimates and searches

In the majority of cases you can carry out preliminary searches to inform your estimate. For example, the requested information may be scattered throughout the email inbox of a member of staff. If you hadn’t tested how long it would take to open and read a selection of emails to identify any relevant to the request, it would be difficult to argue that any estimate was realistic.

However, you do not have to start actually retrieving or extracting any of the requested information at this stage. The preliminary searches are just to inform your estimate.

In other cases, however, it may only become apparent that the request would exceed the appropriate limit once you’ve started to retrieve the requested information.

In this scenario, there is no obligation to continue to search up to the appropriate limit. You can stop as soon as you realise you will exceed it.

Similarly, if you initially estimate that you would not exceed the appropriate limit, only for it to turn out that the estimate was flawed, you can stop searching as soon as this becomes apparent. This was confirmed by the Information Tribunal in the case of Quinn v Information Commissioner and the Home Office (EA/2006/0010, 15 November 2006).

Obviously, once it becomes apparent that you would exceed the appropriate limit, you must produce an estimate, or new estimate, based on what you now know about the costs involved. You must inform the applicant that section 12 is engaged by issuing a refusal notice.

It’s also worth noting that you don’t have to search up to the appropriate limit simply because the applicant has asked you to. As set out in our guidance Recognising a request made under the Freedom of Information Act (section 8), a request framed by the cost limit is not a valid request.

As a matter of good practice, you should avoid providing the information found through any searches already conducted and then claiming section 12 for the remainder of the information. Instead, inform the applicant that section 12 is engaged for all of the request. You can then offer advice and assistance which should enable the applicant to make a fresh request, targeting the information which they are most interested in from that which could be provided within the limit. For example, if their original request covered a period of four years, but you could only provide 12 months’ worth of records within the appropriate limit, they should be free to choose which 12 months to focus on. Similarly, they may be seeking two sets of information in order to compare one with the other. For example, the number of grievances made by employees throughout an organisation, together with the number of grievances made by employees with a particular characteristic. Providing only information on the overall number of grievances would not allow any analysis. However, providing information on both sets of information for a small number of business areas would at least allow the requester to conduct some limited analysis.

Therefore in practice, as soon as you recognise that you are going to exceed the appropriate limit, it makes sense to stop searching and inform the applicant. This avoids the risk of unnecessary work.

The Commissioner may find that you are still obliged to provide advice and assistance to the applicant and deal with any fresh request, despite having already searched up to the appropriate limit, if you did not initially provide such advice and give the applicant an opportunity to seek the information of most value to them.

Sampling exercises

You may choose to base your estimate on a random or representative sampling exercise.

For example, in cases where you hold a large number of files of varying sizes, it may be useful to choose a random selection of those files to calculate an average for the time it would take to locate, retrieve and extract the relevant information.

Alternatively, it may be useful to pick a representative sample of files or records which fall within the scope of the request to demonstrate the application of section 12. For example, one file from each of the years referred to in the request or one file from each relevant department.

Providing ‘cogent evidence’

Not only does your estimate have to be sensible and realistic, you need to make sure it is supported by cogent evidence. You should therefore make sure you are in a position to make that evidence available if the Commissioner receives a complaint.

Be prepared to explain how you calculated the estimate, by reference to:

• your search strategy, for example:
  • whether you have carried out any searches for the requested information;
  • whether you based the estimate on a random or representative sampling exercise;
  • which departments or members of staff you contacted; and
  • the search terms used when querying electronic records.
• why you need to search for the information in the referenced files or records;
• how you store the information, for example whether you hold the information in paper or electronic files;
• how many files, boxes, documents, records or emails you would need to review; and
• how long it would take to determine whether you hold the requested information or to locate, retrieve and extract it. For example, it is useful to include the size of the relevant files, the average length of time it would take to review each file and the number of staff required.

This is the level of detail the Commissioner expects if he receives a complaint. In Reuben Kirkham v IC [2018] UKUT 126 (AAC) the Upper Tribunal commented at paragraph 34 that,

“… the Information Commissioner and the tribunals should take a sceptical approach and require the public authority to provide persuasive evidence of how they undertook the estimate, with follow-up questions if necessary.”

If you have not already recorded this detail you may incur further cost by having to provide it at the complaint stage. The task may also be complicated by changes in circumstances between the time of the request and the time of the Commissioner’s investigation.

Although it is not a statutory requirement to explain to the applicant how you have calculated the estimate, it is beneficial to do so for the following reasons:

• It enables the applicant to assess how reasonable the estimate is. This may prevent them making a complaint to the ICO, which will avoid further time and cost.
• Providing a suitable breakdown will help you meet your obligations under section 16 to provide advice and assistance (see Do we need to provide advice and assistance?).

Can we aggregate the cost of a number of requests?

When you are estimating whether you are likely to exceed the appropriate limit, you can include the costs of complying with two or more requests if the conditions laid out in regulation 5 of the Fees Regulations are satisfied. Those conditions require the requests to:

• be 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;
• relate, to any extent, to the same or similar information; and
• be received by the public authority within any period of 60 consecutive working days.

But you should note that you cannot aggregate requests which clearly fall under different regimes, for example, the Freedom of Information Act, the Environmental Information Regulations or the Data Protection Act. For more details, please refer to Calculating costs where a request spans different access regimes.

‘Two or more requests’

You can aggregate two or more separate requests.

You should note that multiple requests within a single item of correspondence are separate requests for the purpose of section 12. This was confirmed by the Information Tribunal in the case of Ian Fitzsimmons v ICO & Department for Culture, Media and Sport (EA/2007/0124, 17 June 2008).

Therefore you should ensure that you can aggregate each request in accordance with the conditions laid out in the Fees Regulations. You should deal with any unrelated requests separately for the purposes of determining whether you would exceed the appropriate limit.

‘Same or similar information’

Regulation 5(2) of the Fees Regulations allows you to aggregate requests if they relate “to any extent” to the same or similar information. This is quite a wide test but you still need to ensure that the requests meet this requirement.

• Determining whether the information captured by different requests is to any extent the same or similar is a matter of judgement. As the Tribunal in John Slater v IC and Department for Work and Pensions EA/2019/0118, 9 April 2020 commented:

“Whether, however, the information to which the requests related was to any extent the same or similar is, in our view, a simple matter of examining the terms, and the context of, the requests themselves. It is, in essence, a question of recognition. It is easier to say if something is the same, or similar, when one can see it all, in context, rather than trying to prescribe what will or will not be the same or similar.”

The Commissioner considers that requests are likely to relate to the same or similar information where, for example, the applicant has expressly linked the requests. An overarching theme or common thread running between the requests may alert you to the possibility of aggregation. However, an overarching theme may not be sufficient on its own. You need to be careful not to take a superficial approach when looking for similarities between requests.

‘Requests received within 60 consecutive working days’

The Fees Regulations state that you can aggregate requests received within 60 consecutive working days.

You should consider whether it would exceed the appropriate limit to comply with the request based on the way you hold records either on the day on which you received the request, or on any day up to the time for statutory compliance.

Time at which to apply section 12 for aggregated requests

The Commissioner recognises that the Fees Regulations do not cover how to reconcile the ability to aggregate requests received over 60 consecutive working days with your obligation to respond to requests within the statutory time limit under section 10(1), normally 20 working days.

The Commissioner’s approach is to allow the aggregation period to only run up to the statutory time for compliance. In other words, if under section 10 you must respond within 20 working days, you can only take account of requests received up to 20 working days from the date you received the request.

To do otherwise could encourage public authorities to breach their statutory time for compliance in anticipation of receiving further requests. It could also reward those that had breached the time limit and subsequently received a further request.

But you could not include the cost of complying with any request received after that date in your estimate of the cost of complying with the first request. This remains the case even if you fail to respond to the first request within 20 working days and are therefore in breach of the statutory time for compliance.

However, the aggregation period can run for up to 60 working days ‘backwards’ from the date of any single request under consideration. Therefore in example B when considering the second request, you could include the 1 September request, as you received it well within the 60 working days allowed.

The above example demonstrates that the total aggregation period must not exceed 60 working days.

The ‘neither confirm nor deny’ provision under section 12

Under section 12(2), if you estimate that it would exceed the appropriate limit to even confirm whether you hold the requested information, then you do not have to do so. You also do not need to deal with the substance of the request.

But if you know that you hold the requested information, or can establish whether you hold it within the appropriate limit, you must confirm this to the applicant. This applies even if you estimate that it would exceed the appropriate limit to deal with the substance of the request. However, you still don’t have to deal with the substance of the request.

In either scenario, you need to provide a refusal notice informing the applicant that you are relying on section 12. You should make it clear whether you are relying on section 12 to exempt you from confirming whether you hold the information, or whether you can confirm that you hold the information and are only relying on section 12 to exempt you from communicating that information.

As explained earlier, there is no statutory requirement under section 12 to provide the applicant with a breakdown of how you calculated the estimate. But it is useful to do so for a number of reasons. One being that it may help you fulfil your obligations under section 16 to provide advice and assistance.

What’s the relevance of section 12 to deleted information?

For the purposes of the FOI Act, you still technically hold the information where you have deleted it from your live files but it remains in recycle bins or back-up tapes. See our guidance Determining whether we hold information for more information on when you should search recycle bins and back-up tapes in order to respond to a request.

In broad terms, the Commissioner does not consider that searches should routinely include recovery of deleted information, particularly where there is no indication that doing so would produce any relevant information. If back-up tapes were routinely searched, the cost of compliance for many requests would exceed the appropriate limit. But there may be situations where it is appropriate to carry out such searches. If you do wish to include the cost of such searches in your estimate, you will need to demonstrate to the Commissioner why it would be reasonable to search the deleted information in the event we receive a complaint.

If you do search for deleted records, you can include the cost of doing so in your estimate of the cost of compliance. This includes the cost of purchasing specialist software to recover the information. However, you can only use the £25 per hour rate when calculating the cost of staff time.

Do we need to provide advice and assistance?

When refusing a request on the basis of cost, you should provide advice and assistance. The aim of this is to help the applicant make a fresh request which you can deal with within the appropriate limit. The statutory duty to do so is set out in section 16 of FOIA, which you need to read in conjunction with section 45 code of practice. However, it’s to your advantage to go beyond the code’s requirements.

Section 16 states as follows:

16. — (1) It shall be the duty of a public 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.

(2) Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case.

Paragraph 6.9 of the section 45 code of practice states that where a public authority does not have to comply with a request because it would exceed the appropriate limit to do so, then it:

“…should consider what advice and assistance can be provided to help the applicant reframe or refocus their request with a view to bringing it within the cost limit. This may include suggesting that the subject or timespan of the request is narrowed.”

If you have satisfied the requirements of the section 45 code of practice, then you will have complied with section 16.

However, this should not prevent you from going beyond the provisions of the code. The Commissioner considers it good practice to adopt a constructive approach, aimed at putting the applicant in a position whereby they understand the costs involved in dealing with their request. They can then use that knowledge to make a fresh request which targets the information of most interest to them and which you can deal with within the appropriate limit. In the longer term, this constructive approach could improve the clarity of requests you receive. It could also reduce the number of requests you are refusing on the grounds of cost. Support for this constructive approach is taken from the Tribunal.

In line with the examples above, you could inform the applicant what information you can provide within the appropriate limit. Doing so is more useful than just advising the applicant to ‘narrow’ the request or be more specific in focus. Advising applicants to narrow their requests without indicating what information you can provide within the limit, will often just result in applicants making new requests that still exceed the appropriate limit.

There are, of course, limits to the level of advice and assistance you are required to provide. In John Slater v Information Commissioner EA/2019/0118 9 April 2020) the Tribunal found that although the public authority should initiate a dialogue with the applicant, it is not required to,

“… provide a requester with a menu, or price list, for the retrieval of the various types of information they hold” (paragraph 69)

A similar approach was taken by the Upper Tribunal in the Commissioner of the Metropolitan Police vs Information Commissioner and Donnie Mackenzie ([2014] UKUT 0479 (AAC) 22 October 2014), which endorsed the approach taken in an earlier case, in Bruce Beckles v Information Commissioner EA/2011/0073 & 0074 (7 September 2011). In Beckles the First Tier Tribunal stated that,

“Section 16 requires a public authority, whether before or after the request is made, to suggest obvious alternative formulations of the request which will enable it to supply the core of the information sought within the cost limits. It is not required to exercise its imagination to proffer other possible solutions to the problem.” (paragraph 24).

The Upper Tribunal in the Metropolitan Police case commented that this “represented an accurate statement of the law”.

When providing advice and assistance it is useful to remember that the information captured by any refined request could be subject to the application of other exemptions. For example, you could refuse the refined request in full or in part under an exemption. Therefore we suggest you advise the applicant that the purpose of providing advice and assistance is simply so they can make a request that you can deal with within the appropriate limit. It is not a request which will necessarily result in the disclosure of the requested information. This will help manage their expectations.

What if there’s no meaningful advice that we can provide?

There may be situations where it is very difficult to provide any meaningful advice on how a requester could refine their request. The duty to provide assistance and advice under section 16 is expressly qualified by the words “only in so far as it would be reasonable to expect the authority to do so”.

Where you are unable to offer advice on how the requester could refine their request you should inform the applicant that this is the case. The Commissioner considers this is necessary to comply with your obligations under section 16.

On a very practical level, failing to inform the applicant that you can’t provide any information within the limit could result in the applicant making further, futile requests. This simply creates additional work for you and is likely to antagonise the applicant. It may also lead to requests for internal review and complaints to the Commissioner, not only about the initial application of section 12, but also about a perceived failure to comply with section 16.

If we fail to provide advice and assistance does this invalidate our reliance on section 12?

No. The Information Tribunal in the case of Alasdair Roberts and the Information Commissioner (EA/2008/0050, 4 December 2008) confirmed that a breach of section 16 does not invalidate the original costs estimate.

Should we treat any refined request as a new request?

Yes, the refined request becomes a new request. This means that the statutory time for compliance begins on the date of the receipt of that new request.
However, you cannot aggregate the costs of dealing with the new request with those of dealing with the original request. To do so would frustrate the purposes behind sections 12 and 16.