The Freedom of Information Act - Compliance by Public Bodies

Chapter 4 - Fees

Fees and the FOI Act

The FOI Act provides a detailed regime for charging fees in respect of information sought under the Act.

The Act permits the charging of a fee only in connection with:

  • the gathering together of the relevant records (search and retrieval time); and
  • any copying of the record which is required (section 47(2)).

The number of hours of search and retrieval time which can be charged are limited to those which an efficient and well-organised body would need to find the records. The hourly amount of the search and retrieval fee is set by regulation at £16.50 (€20.95). The charge for the copying of records is set at 3p (4 cent) per page.

There are a number of situations in which the Act envisages that a fee may be either reduced or waived :

  • Where the requester is seeking records which contain only personal information about her/him, a fee for search and retrieval time is not to be imposed (unless a significant number of records is involved).
  • The public body must consider not imposing a fee for the costs of copying personal records if it is not reasonable to do so, having regard to the limited means of the requester and the nature of the personal information being sought.
  • A fee (or deposit) may be reduced or waived if the body considers that the records (if disclosed) would be of particular assistance to the understanding of an issue of national importance.
  • A public body should not impose a fee if it considers that the amount of the proposed fee would be less than the administrative (including accounting and collection) costs involved.

It is clear that the fees charged in respect of the provision of records under the Act do not cover the full cost of dealing with a request, since by far the greatest cost to public bodies in most cases is the time spent in considering whether records should be released. It is also apparent from comments made during the passage of the legislation through the Oireachtas that this was deliberate, that the charging regime is not intended to discourage the average user of the Act from making requests and that they are intended, in part, as a safeguard against abuse of the right of access by persons making voluminous or deliberately disruptive requests.

Despite this, some concern was expressed during the passage of the legislation and subsequently that the charging of fees might be used by some public bodies as an unreasonable deterrent to requesters. In the course of the investigation I looked at how the fee regime operated in practice. In particular, I examined whether it was applied uniformly by public bodies and whether there was any evidence that fees were being imposed in such a way as to defeat the purposes of the Act.

The Charging Regime in Public Bodies

In the case of the public bodies examined during the investigation, fees were charged in only a very small percentage of cases, ranging from 1% to 4% depending on the public body concerned. However, I noted that the number of FOI requests where fees have been paid has increased in 2000 (from 82 in 1999 to 130 in 2000 for civil service Departments/Offices), signalling an increased willingness on the part of some public bodies to charge fees. The public bodies examined during the investigation indicated that very few requests are withdrawn or not proceeded with because a fee or deposit is charged. However, the imposition of a fee may result in the request being narrowed - something which is not objectionable in itself - provided it does not result in a requester being unreasonably denied access to records.

Requesters have the right to apply to me for review of a decision to charge a fee or deposit in excess of £10 (€12.70). Only 18 such applications have been made since the commencement of the Act. Accordingly, my general conclusion is that fees are not being used by public bodies as an unreasonable deterrent and a means of avoiding unwelcome requests.

It appears that in many cases public bodies are reluctant to charge fees simply because of the inconvenience involved for the decision maker in doing so and that more fees might be imposed if the process was streamlined. At this stage, I do not favour any easing of this administrative burden. I do not believe that the experience of the last three years suggests that the rights of requesters should be curtailed or that it should be made any easier for public bodies to deflect requests through the imposition of fees.

The Act provides, in section 47(6), that fees are not to be charged where collection, accounting and other costs would exceed the amount of the fee. CPU Notice 11 suggested that effect should be given to this provision by not charging any fee less than £5 (€6.35). In practice this guideline appears to be widely disregarded, with some public bodies and individual decision makers deciding when fees should be waived on de minimis grounds, often at a level considerably in excess of £5 (€6.35). This is not altogether desirable because it can lead to inconsistent and arbitrary charging practices.

There also appeared to be a view among some decision makers that if a deposit was not sought when the request was being dealt with initially then the maximum fee which could be charged was £40 (€50.80). In my view this is not correct. If for one reason or another - for example, failure to estimate the cost of search and retrieval accurately in advance - a deposit is not demanded, it is still open to a public body to charge a fee in excess of £40 (€50.80) either on foot of the initial decision or on internal review.

Recommendations

The Central Policy Unit should reconsider the recommended de minimis fee with a view to increasing it to a level which would be applied uniformly by decision makers. The effect of this recommendation is to raise the threshold figure at which fees become chargeable.

Each public body should review its practices in cases where a deposit has not been demanded but the ultimate cost of search and retrieval exceeds £40 (€50.80).

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