Access to Information: Charging Policy
ACCESS TO INFORMATION CHARGING POLICY
Author: Andrea Simmons Owner: Steve Mullaney Authorised by: CMT
Issue Approval Issue Date Page V 1.2 Initial issue 12th July 2005 Page 1 of 12 Access to Information: Charging Policy
Document Control
Name FOI Charging Policy Status Draft
Version Control
Version No Date Author Details of Change 0.1 12th Oct 2004 Andrea Simmons First Draft 0.2 20th Oct 2004 Andrea Simmons Second draft following DCA change to upper fees limit 0.3 23rd Dec 2004 Andrea Simmons Third draft following DCA fees guidance and fees being laid down in Parliament 0.4 4th Jan 2005 Andrea Simmons Fourth draft following update on VAT application guidance 0.5 21st Jan 2005 Andrea Simmons Fifth draft following further charging analysis 1.0 16th Feb 2005 Andrea Simmons Initial issue following CMT approval 1.1. 25th April 2005 Andrea Simmons Slight amendment to paragraph 3.1.3. 1.2. 12th July 2005 Andrea Simmons Insertion of paragraph 3.1.10. referring to PSI
Quality Reviewers
Name Quality Review Role Method of Date of Approval Approval Steve Mullaney Team Leader Email 16/02/05
Distribution List
Name Title All staff Intranet RDA FOI group July 2005
Authorisation
Name Title Date CMT 16/02/05
Issue Approval Issue Date Page V 1.2 Initial issue 12th July 2005 Page 2 of 12 Access to Information: Charging Policy
Contents
Document Control 2
Contents 3
1. Background 4
2. Scope 4
3. Charging Regime 4
4. Exempt charges 6
5. Charges to be applied 6
6. Notifying charges 7
7. Related Documents 8
8. Audit 8
9. Approval and Review 8
10. Definitions 9
ANNEX A - Calculating charges for RFIs in excess of £450 10
ANNEX B – Fees Notice 11
Issue Approval Issue Date Page V 1.2 Initial issue 12th July 2005 Page 3 of 12 Access to Information: Charging Policy
1. Background 1.1. Advantage West Midlands has responsibilities under the Freedom of Information Act 2000 (FOI) to: make information available as a matter of course through its publication scheme; and to make information available on request (unless the subject of that information is subject to an exemption under the Act). 1.2. The Government has always been very clear that the majority of costs for meeting FOI requests will be met by the public sector rather than the individual making the request. 2. Scope 2.1. The Freedom of Information Act covers all information “held” by the Agency. Information “held” by the Agency can be information that is: either in a paper document or in an electronic format; created by the Agency; created by a third party but we have a copy of it; and kept in any of our offices, or in any off-site location on our behalf. 2.2. This policy applies to all staff and contractors in assessing what charges shall apply to Requests for Information (RFI). 3. Charging Regime
3.1 General 3.1.1. When estimating the cost of complying with a written request for information AWM will take into account the staff time, charged at a rate of £25 per hour, involved in the following activities: Determining whether the information is held, Locating the information or a document which may contain the information, Retrieving the information, or a document that may contain the information, and Extracting the information from a document containing it 3.1.2. Where the cost of complying with a written request for information is estimated to be below £450 (“appropriate limit”), there will be no charge other than the costs of reproducing the information, postage and other forms of transmitting the information. The applicant will be issued with a fees notice (see Annex B) and must pay the costs specified therein within a period of three months before the Agency can comply with the request. 3.1.3. The Agency is not obliged to respond to a written request for information where it estimates that the cost of complying with the request would be in excess of £450 (“appropriate limit”). In such cases the Agency may decide, at its discretion, to consider refusing the request. However, we will discuss with the applicant whether he or she would prefer to modify the request to reduce the cost.
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3.1.4. If AWM receives two or more related requests within a period of 60 consecutive working days (a repeated request), from a person or different persons who appear to be acting in concert or in pursuance of a campaign, the costs of complying with the individual requests will be aggregated. If the estimated costs of complying with the requests are added together and the total is found to be in excess of £450, the Agency will not be obliged to comply with any of the requests. 3.1.5. The Agency may, in exceptional cases, comply with a written request for information that would cost in excess of £450. In such cases, the Agency will be entitled to charge for both the estimated cost of staff time in retrieving and collating the information, charged at £25 per hour, as well as the costs of informing the person making the request whether the Agency holds the information and the costs of communicating the information to him or her. 3.1.6. If a request would cost more than the “appropriate limit” to answer, the choices are: a) to refuse to answer (not provide the information), b) to answer without charge, c) or to answer and charge a permitted fee. 3.1.7. Maximum fees will be determined according to each separate regime – i.e. Data Protection Act Subject Access Requests have a £10 fee applicable, Environmental Information Regulations allow for “reasonable charges” to be applied and FOI requests for information are to be charged at Zone G hourly rates. 3.1.8. Where the sum of costs exceeds the appropriate limit, the Agency may charge a fee of either: The prescribed costs in full for requests in excess of £450 The cost of disbursements (copying and postage costs). 3.1.9. Where the sum of these costs does not exceed the appropriate limit, the Agency may charge a fee covering the cost of disbursements (copying and postage costs). However, this has been agreed at a de minimis level of £100. 3.1.10. Information disclosures may be subject to copyright protection. Information will be disclosed to a requestor for their information and may be used for any non-commercial research. Contents may also be used for the purposes of news reporting. However, any other re-use, for example commercial publication or publication on a website, requires the permission of this Agency. You should therefore confirm how you wish to re-use the information and what the intended audience will be so that we can consider your request. A charge for licensing the information re-use will be considered under the Regulations for the Re-use of Public Sector Information (PSI).
3.2 VAT 3.2.1. Sections 9 and 13 of the Freedom of Information Act 2000 gives public authorities the option to charge for information in accordance with the fees Regulations (SI 2004/3244). As the Act does not set a specific fee, any monies charged are not statutory fees. However, if the information could only be provided by AWM (i.e. the information is not also held by organisations that are not public authorities), Customs do not consider that information released under the Act constitutes an economic activity. As such,
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any fees charged in these circumstances will be outside the scope of VAT. This means that no VAT should be added to the fees. 3.2.2. If, on the other hand, AWM is not the only possible source of the information (i.e. the information is also available from a source that is not a public authority), any fees charged would attract VAT, as this would be classed as economic activity. This distinction is made so as not to distort competition between the public and private sector. 3.2.3. These rules apply equally to requests that are above or below the appropriate limit - the key determining factor as to whether VAT is charged is whether the information is available from another source that is not a public authority. 3.2.4. Fees charged for information that is provided in accordance with a public authority's publication scheme will attract VAT. 4. Exempt charges 4.1. The Fees Regulations do not apply to: Information which is already reasonably accessible1 Material available under the publication scheme Disclosure of information for which a charge can be made under any other enactment. 4.2. The Agency can not take into account any of the following costs: a) The time taken to check that an RFI meets the requirements of the FOIA b) Considering whether the information requests should be withheld in reliance on an exemption c) Including any costs incurred through seeking legal advice d) Considering whether a request is vexatious or repeated e) Obtaining authorisation to send out the information f) The time taken to calculate any fee to be charged g) Providing advice and assistance. 4.3. The Agency has committed not to charge for information requests where the cost of processing such requests is less than £450. This commitment is based on several considerations: It is estimated that the majority of FOI requests will cost less than £450, and the Agency does not want the public to feel that we are putting obstacles in the way of accessing information. Our front-line staff already process hundreds of requests for information every year where no charge is made, and we don’t want to change this. The fees regulations permit a charge of disbursements below the “appropriate limit”. It could cost more to raise the invoice and process the receipt than we would get in income. Removing the charging stage simplifies the FOI request procedure/ process.
1 Section 21 exemption Issue Approval Issue Date Page V 1.2 Initial issue 12th July 2005 Page 6 of 12 Access to Information: Charging Policy
5. Charges to be applied 5.1. The majority of information in the publication scheme is available free; for others a charge may be levied. The charges will vary according to how information is made available, which is specified for each class within the scheme.2 5.2. We will not charge for providing information in an alternative format if the Disability Discrimination Act (DDA) covers the person requesting it, unless the original document was a priced publication. In this case, the charge for the alternative format will not exceed the cost of original publication. 5.3. The decision to apply actual costs (based on a zone G employee processing the application) for information requests in excess of £450 has been taken in the interests of Agency resources. The Agency does not have to process these requests. However, in the spirit of the Freedom of Information Act we have decided to do so as long as some costs can be recovered. 5.4. The maximum fee that could be charged will be based on an estimate of the costs that we reasonably expect to incur in:
a) Informing the person making the request whether it holds the information
b) Communicating the information to the person making the request
c) Putting the information in the applicant’s preferred format – so far as this is reasonably practicable
d) Reproducing any document containing the information, e.g. photocopying or printing
e) Postage and other forms of communicating the information
f) Staff time to sit with an applicant to inspect records
g) Summarising information
h) Translating information. 5.5. Charges will apply as follows: Website: Publications cited as being available on the Agency website are free to access in that format, unless otherwise specified. In general, the supply of printed versions of the web pages will not incur charges. We do not provide printouts of other people's websites. Email: free of charge unless otherwise specified. Copies of information by post: Paper copies of the publication scheme will, in the main, be provided free of charge. Charges may vary, i.e. be higher, lower or waived, if special formats are required or special circumstances apply. Multiple requests from the same individual or organisation will be treated as a single request and the appropriate charge levied. Onsite: Information can be viewed free of charge,.
2 See Annex A for guidance on calculating fees over £450 Issue Approval Issue Date Page V 1.2 Initial issue 12th July 2005 Page 7 of 12 Access to Information: Charging Policy
6. Notifying charges 6.1. Where charges apply, we will notify the estimated charge to the enquirer before doing any charged work. 6.2. When we notify the charge, we will offer to give advice on how to change the request to reduce the charge. 6.3. Where there is a significant difference between the estimated and the actual charge, we will notify the enquirer. 6.4. Where charges apply, we will require payment before compiling and supplying information. 6.5. Whether work can be halted once the fees notice has been despatched will depend on a further calculation. That calculation is whether there is sufficient time remaining on the stopped “20 working days” clock to consider the exemptions (including the public interest test), redact documents and undertake any consultations. Any decision to do so will need to bear in mind that the “20 working days” limit is a maximum and that responses should be made as promptly as possible. 7. Related Documents
Document Title Version Date Authors FOI Policy Statement 0.1 Andrea Simmons Records Management 0.1 Vera Giles Policy Disclosures Policy 0.1 Andrea Simmons FOI Complaints Procedure 0.1 Andrea Simmons Data Protection Policy 0.1 Andrea Simmons
8. Audit Compliance with this policy will be audited on a regular basis.
9. Approval and Review This policy will be reviewed in July 2005. Changes made to the policy will be dependant upon the number and cost of information requests processed. Sign-off of the Policy is required from:
Role Name
Review of this Policy is required from:
Role Name
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10. Definitions Relevant definitions within the Freedom of Information Act 2000: Advice and It is the Agency’s duty to ensure that a pro-disclosure stance is maintained assistance by providing advice and assistance to the public in order to ensure they receive the information they are seeking. Exemption An exemption is a reason why information would not be disclosed – i.e. the (Absolute) right to know is wholly disapplied. Absolute exemption means that the exempt information will not normally be made available to you at all. The effect of the absolute exemption is not to deny individuals a right of access to information – there may be other legislation that would permit the disclosure. Subsection (2) provides that public authorities are not under a duty to disclose information if either the information is exempt by virtue of a provision conferring an absolute exemption. In some cases there is no legal right of access at all, for instance information supplied by or relating to bodies dealing with security matters or information covered by parliamentary privilege. In other cases, for instance information available to the applicant by other means or personal information relating to the applicant, it may be possible to obtain the information by other means although not under the FOI Act. Exemption The information will be made available to you, unless the public interest in (Qualified) not disclosing it outweighs the public interest in disclosure. Public Interest The Agency will be simply deciding whether in any particular case it serves Test the interests of the public better to withhold or to disclose information. It is important to bear in mind that the competing interests to be considered are the public interest favouring disclosure against the public (rather than private) interest favouring the withholding of information. There will often be a private interest in withholding information which would reveal incompetence on the part of or corruption within the public authority or which would simply cause embarrassment to the authority. However, the public interest will favour accountability and good administration and it is this interest that must be weighed against the public interest in not disclosing the information. Factors relating to public interest may include: – Promoting public debate of issues of the day; – Promoting accountability in decision making and public expenditure – Allowing individuals to understand decisions and, in some cases, assisting individuals in challenging those decisions; – Bringing to light information affecting public safety
Publication This is a guide to the information that the Agency publishes or intends to Scheme publish in the future, whether on paper, over the internet or by any other means. Requests for Enquirers may approach directorates or teams directly in the relevant office information or be referred to them by the Compliance Manager. Where a request for information covers a number of different topics, the enquirer should be informed which Directorate(s) has/have been asked to reply individually on which points. Inquiries about operational issues (day to day) not related to particular cases should be referred to the Head of Function for that operational area. We shall respond to requests for information in the simplest, most cost effective way. This will usually be by standard printed leaflet or letter. There is no right under the Code to copies of particular documents (although these may sometimes be the preferred means of supplying the information). Any request for a copy of a particular document will be construed as a request for the information contained in that document. Issue Approval Issue Date Page V 1.2 Initial issue 12th July 2005 Page 9 of 12 Access to Information: Charging Policy
ANNEX A - Calculating charges for RFIs in excess of £450 1. Take the chargeable time spent by the members of staff involved. 2. Multiply by the Zone G hourly cost (based on annual salary plus 36%). 3. Charge the actual costs of photocopying, printing, postage, faxing and any other costs of supplying the information to the enquirer in the manner they have requested. 4. Note: The above method of calculating charges is in line with the guidance for the Freedom of Information Act and the Environmental Information Regulations.
Example 1 Request for a health and safety report and minutes of a meeting to discuss the issues (specified) covered by the report, together with related correspondence: Time spent looking for the report and related records: 9 hours @ £25 per hour = £225.00 Falls below “appropriate limit”, therefore 3 choices: 1. fulfil with no charge 2. charge for time + disbursements 3. charge for disbursements only Photocopying of papers (disbursements) 120 sheets @ 10p per sheet = £12.00
Fee: Disbursements £12.00* Below de minimis £100 level, so no charge
Example 2 Request for copies of papers relating to an investigation into building problems for a [specified development] including meetings, reports, project documents [specified]: Time spent looking for the report and related records: 120 hours @ £25 per hour = £3000.00 Clearly above the “appropriate limit” Recalculate 120 hours @ £14 per hour = £1680.00 Photocopying of reports (disbursements) 80 pages @ 10p per sheet = £ 8.00 Fee: Prescribed costs + disbursements = £1688.00
Plus VAT @ 17.5% = £ 358.07
Total chargeable = £2046.07
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ANNEX B – Fees Notice
Dear
FREEDOM OF INFORMATION ACT 2000 - INFORMATION REQUEST
We refer to our letter of DATE refusing your request for information because our estimated costs exceed the fees limit under Regulation 4 of the Freedom of Information and Data Protection (Appropriate Limits and Fees Regulations) 2004. You have now indicated that you are prepared to pay a fee for this information, and we can confirm that we are prepared to deal with your request on that basis.
This letter is our formal notice under Section 13 of the Freedom of Information Act, calculated in accordance with Regulation 7 for the first part of our fees. The amount required is £SUM. An explanation of how this estimate was calculated together with a schedule of charges is attached to this letter. If the actual cost of complying with the request is less than the estimate the balance will be returned to you.
Please make cheques payable to Advantage West Midlands. You have up to 3 months from the date of this letter to make payment after which, if we have not received payment, we will treat your request as cancelled. When we receive your payment we will process your request. Please note that the time limit for responding to your request is suspended until I receive payment.
We must advise you that it is possible that our searches will reveal that we do not in fact have the information you have requested, for example because it has been destroyed deleted or lost. If that turns out to be the case you will not necessarily be entitled to a refund of the fee as we will have carried out work to search for the information. It is also possible that some or all of the information we retrieve will be exempt from disclosure and we will be able to do no more than confirm that we hold it. Again you would not be entitled to a refund but you would have rights of appeal, including a right to appeal to the Information Commissioner against our refusal to release the information.
If it takes less time than estimated to locate the information we will refund you based on the actual amount of work time taken. If information was found to be lost, or prematurely destroyed, through the actions of the Agency we would refund you in full.
Once we have located the information, assuming it is not exempt from disclosure, there may be a supplemental fee for copying and related charges before we can release any information to you. We cannot estimate these charges until the search has been completed, but as an indication copying would be based on £0.10 per page (first twenty pages free).
It may be possible to provide you with some of the information you requested for a lesser fee than the one quoted above, if you are prepared to limit the scope of your request. If you would like to do this, please contact me.
You can find out more about the Act from the Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF, telephone: 01625 545700, fax: 01625 524510.
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If you have any queries about this letter, please contact me. Please remember to quote the reference number above in any future communications.
Yours sincerely
Name Title Direct Dial Telephone: number Fax: number Email: address
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