Charges for providing information - from the Information Commissioners Office

The jist is that an information holder can charge 10p per photocopy sheet but not for the staff time taken to get that. (I got that bit wrong in a previous blog post). This refers to information under the Environmental Information Regualtions, but I believe can be applied to Data Protection Act or Freedom of Information requests. More information can be found in the ICO document "Freedom of Information Act 2000 Using the Fees Regulations" at ico.org.uk/for_organisation...

Can I suggest that the ICO guidance is placed on the TUK webiste if it isnt already and I havent found it.

It is for a public authority to satisfy itself that any charges made under the EIR do not exceed a reasonable amount (a subjective test) but in reaching its decision it must only take into account relevant considerations (for example, the actual cost of photocopying) and must disregard any irrelevant ones (for example, the impact of charges on the revenue of the public authority). In any event, the charges should not exceed the cost of providing the information.

If a public authority attempts to charge an unreasonable fee, we will find a breach of reg 8(3).

In order to levy a charge, a public authority must notify the applicant no later than 20 working days after the date of receipt of the request. Failure to do so will lead to a finding of a reg 8(4) breach.

In the appeal of Markinson v ICO, the ICO had decided that a public authority was acting lawfully under the EIR in charging £6 for a building control or planning decision notice and 50p for each other photocopied sheet. The IT allowed the appeal on the basis that the ICO had only been partially correct in its decision.

The IT ruled that:-

1. it is for the public authority to satisfy itself that any charges do not exceed a reasonable amount (which was the correct interpretation of Regulation 8(3) taken by the ICO in this case)

2. but in reaching this decision the public authority must only take into account relevant considerations and must disregard irrelevant ones (which, in this case, was where the ICO was incorrect in its approach in that it had allowed the public authority to take into account irrelevant considerations and had not ensured that it took into account relevant ones)

Relevant considerations for a public authority to take into account

1. The IT in Markinson set out the following as relevant considerations for a public authority to take into account in determining that its charges under the EIR did not exceed a reasonable amount :-Any charge should not exceed the cost of providing information.

The cost of providing the information may include, for example, the cost of the paper for photocopying or printing the information and a covering letter and the cost of postage. It should not include the cost of staff time in maintaining, identifying, locating or retrieving from storage the information in question.

Support for this view was found in:-

•the DEFRA “Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004” (February 2005) which states that

“When making a charge, whether for information that is proactively disseminated or provided on request, the charge must not exceed the cost of producing the information…” (p.13)

•the DEFRA publication “Guidance to the Environmental Information Regulations 2004” (March 2005)*which states:

“[A reasonable charge] should not exceed the cost of providing the information, for example, the cost of photocopies.” (paragraph 6.26)

•the DCA# publication “Guidance on the application of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004”, which is relevant because the estimation of costs under the FoIA, where not calculating whether the appropriate limit is exceeded, involves a similar judgment to that under the EIR. The guidance states that charges could not be made for

“…the time taken to locate, retrieve or extract the information or to write a covering letter to the applicant explaining that the information is being provided”

[Regulation 4(3) of the Fees Regulations itself provides that the cost of locating, retrieving and extracting the information– as well as determining whether it is held – can be taken into account.]

but that charges could be made for

“…the cost of paper when photocopying or printing the information and printing the covering letter, as well as the cost of postage” (paragraph 3.4.3)

2. Public authorities should generally adopt 10p per sheet as the cost for photocopying an A4 sheet of paper.

Support for this view was found in the DCA guidance on fees (referred to in 1(iii) above) which states that:

“Authorities can charge for the actual costs incurred, but charges are expected to be reasonable. For example, in most cases, photocopying and printing would be expected to cost no more than 10 pence per sheet of paper” (paragraph 3.4.5)

and the ODPM publication “Making the planning system accessible to everyone: Good practice guidance on access to and charging for planning information” (September 2004) which states

“…a reasonable charge would be similar to commercial rates at photocopying shops, that is, 10p for each sheet of A4. This also reflects the lease charge on most photocopier machines.” (paragraph 5.19)

This guidance was of particular assistance “…in deciding how to fix a charge that did not exceed the cost of providing the copies.” (paragraph 34 pg 20 of IT decision).

3. A public authority can exceed the price guide of 10p per A4 sheet provided:-

•it can demonstrate a good reason for doing so based on the guidance referred to in 1. and 2. above;

•there has been proper study, scrutiny, decision and authorisation for such a charge; and

•the process for arriving at the higher charge is published and available for scrutiny.

4. In relation to photocopying information the only relevant factors in relation to the charge to be made were the number and size of the sheets to be copied.

Considerations a public authority should not take into account

The IT in Markinson identified the following as considerations which a public authority should not take into account in determining the charge :-

1. The cost of staff time in maintaining, identifying, locating or retrieving from storage the information in question.

“…the Council had taken into account “the officer time in locating and retrieval of the documentation”, a factor which we believe the Council, and the Commissioner, should have regarded as irrelevant. Regulation 8(2)(b) provides that the information in question should be made available for inspection free of charge and we believe that, if the costs of locating and retrieving a piece of information should be disregarded for that purpose, it is not open to a public authority to regard it as reasonable to include them in calculating the cost of copying the same material.” (paragraph 33(c) pg 16 of IT decision)

The IT also found support for this view in Recital 18 to the EU Directive on public access to environmental information (Directive2003/4), on which the EIR are based,

“…which, while not forming part of the operative part of the Directive (still less the Regulations), provides guidance that only the actual cost of “producing” copies should be taken into account in considering what a reasonable charge should be.” (paragraph 33(c) pg 16 of IT decision)

2. Reliance solely on a comparison of the charges made by other public authorities to determine what is a reasonable amount.

A public authority should be able to offer a justification of the reasonableness of charges based on calculations using its own actual costs of providing information.

3. An out of date comparison of the charges made by other public authorities.

In the context of area of reprographics, where costs are falling, a comparative study which was three years old was not felt to be sufficiently current to assist in justifying the reasonableness of charges being made.

4. The impact of charges may have on the revenue or workload of a public authority.

Recital 18 to the Directive makes it clear that the permitted charges should not create a profit (“may not exceed actual costs”) and that considerations of either a contribution to revenue or impact on workload were clearly irrelevant in calculating a charge that was required to be reasonable in the context of the Regulations (which expressly provided for a free of charge right to inspection).” (paragraph 33(d) pg 17 of IT decision)

5. The real or perceived significance of a document.

For example the fact that a document has legal significance is not a factor which should be taken into account in determining a reasonable fee.

When charges may exceed the cost of providing the information

Charges may exceed the cost of providing information where:-

1. A public authority makes environmental information available on a commercial basis it may still be able to levy a market based charge. The DEFRA Code of Practice states that:

“… the charge must not exceed the cost of producing the information unless that public authority is one entitled to levy a market-based charge for the information, such as a trading fund.” (Paragraph 28)

Where this is the case it may also be necessary for the public authority to consider whether a market based charge is necessary in order to guarantee the continuation of collecting and publishing such information as Recital 18 of the EU Directive states that:

“…where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market-based charge is considered to be reasonable…”

2. A statute or regulations specify charges to be made for providing information.

Procedural requirements

Failure to comply with the provisions of regulations 8(3) and (4) will lead to a finding of a breach:

•On investigating a complaint, if we are not satisfied that a public authority has demonstrated that the fees it attempted to charge under the EIR are reasonable, we will find a breach of regulation 8(3).

•We will find a breach of regulation 8(4) where a public authority has failed to notify the applicant of its requirement for advance payment of any charges no later than 20 working days after the date of receipt of the request.

In FS50305666, the public authority had charged the applicant a fee of £925 for the provision of information he had requested. It explained that this fee included the cost of staff time in collating and cross-checking the requested information. In addition, it issued the fees notice 6 months after the date of the request. We found in our Decision Notice that the public authority had committed a breach of regulation 8(3) since it had attempted to charge an unreasonable fee, namely for items it was not entitled to take into account. We also found the public authority in breach of regulation 8(4) since it had issued the fees notice later than 20 working days after the date of receipt of the request.

Notes

*In July 2010 DEFRA issued updated guidance: Charging for Environmental Information under the Environmental Information Regulations 2004 . This repeated the above points and also added:

“Where information should be supplied free of charge under the provisions of Regulation 8(2) (i.e. where the applicant is inspecting original documents or viewing a register or list ………… the charge should be limited to covering additional costs such as photocopying” .

Please see LTT178 on this point.

Please also note LTT207 which requires a public authority to publish a schedule of charges.

#The DCA is now the Ministry of Justice (MoJ).

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