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Time for Compliance (including Fees)

6. The "20 Working Day" Time Limit

Section 10(1) of the Act states that the University "must inform the applicant in writing whether it holds the information requested and if so, communicate that information to the applicant, promptly, but not later than 20 working days after receipt of the request." Working Days are defined in the FoIA as all days except Saturdays and Sundays, Christmas Day and Good Friday, and Bank Holidays as set out in the Banking and Financial Services Act 1971. It should be noted that University 'closed days' do count as working days unless they fall under one of the above categories – if the University is closed for one of these days or for a period of days this should be built into the timetable for response.

The Access Code[1] gives further guidance to public authorities on the time limit of 20 working days. Part IV, paragraph 17 of the Code states that: "Public authorities are required to comply with all requests for information promptly and they should not delay responding until the end of the 20 working day period under section 10(1) if the information could reasonably have been provided earlier".

A request is considered 'received' when it is delivered to the University or when it is delivered to the inbox of a member of staff. The date of receipt is not the date the email is opened or the request is passed to the appropriate member of staff for processing (except in the case of emails where an automated 'out-of-office' message provides alternative contact details – in this instance the request would not be considered 'received' until the email was resent to the alternative contact).

7. Charging for Information

The Government’s official FoI Fees Regulations were laid before Parliament on 10 December 2004. Under the new regulations, the University must determine whether the cost of fulfilling a request under the FoIA would breach a cost ceiling of £450, where staff-time costs are set at a rate of £25 per person per hour. In the majority of cases it will be immediately obvious that the cost will not exceed the appropriate limit and the University will therefore not need to estimate the cost of such requests in considering whether or not to release the information requested. In all other cases the University can take account of the costs involved in the following activities:

  • Determining whether the information is held;

  • Locating and retrieving it; and

  • Extracting the information (including editing or redacting).

They cannot take account of the costs involved in the following activities:

  • Checking that a request for information meets the requirements for a valid request;

  • Considering whether information is exempt under the Act;

  • Considering whether a request is vexatious or a repeated request;

  • Obtaining authorisation to send out the information;

  • The time taken to calculate any fee to be charged; and

  • Advice and assistance provided under section 16 of the FoIA.

In certain situations, the costs of answering more than one request can be aggregated for the purposes of estimating whether the £450 limit would be exceeded in relation to any one of those requests. The Government’s Fees Regulations state that requests can only be aggregated in the following circumstances:

  • Two or more requests for information must have been made to the University by either the same individual or by 'different persons who appear to the [University] to be acting in concert or in pursuance of a campaign' (section 12(4)(b) of the FoIA);

  • The requests must relate to the same or similar information; and

  • The requests must have been received by the University within a space of 60 consecutive working days.

(This provision is intended primarily to prevent individuals or organisations circumventing the £450 limit by splitting a request into smaller parts (cf. vexatious requests).)

7.1 Requests Costing Less than the £450 Limit

If the cost to the University for fulfilling an FoI request would cost less than £450, and there is no other basis on which the request may be refused, the University must answer the request. The maximum fee that can be charged for requests below the £450 cost ceiling is limited to the University’s estimate of the costs that it reasonably expects to incur in informing the applicant whether it holds the information and, if the information is released, in communicating that information to the applicant. This includes the costs of:

  • putting the information in the applicant’s preferred format so far as this is reasonably practicable. Section 11(1) of the FoIA states that public authorities have a duty to give effect to an applicant's preferred format for receiving information only so far as this is reasonably practicable. This may include summarising the information, providing a copy (for e.g. by photocopying or printing), allowing the applicant reasonable opportunity to inspect a record containing the information, producing material in an applicant's preferred format (for e.g. by putting it on CD-ROM, video or audio tape), or translating information into a different language. In some cases the University may be required by other legislation to produce information in a particular format or a different language at no additional cost (and should not therefore charge for it as part of compliance under the FoIA. For example, the requirement to make reasonable adjustment for disabled people under the Disability Discrimination Act 1995 could require the University to produce material in a format such as Braille or on audio tape. Another example would be translating information into Welsh when required by the Welsh Language Act 1993.

  • reproducing any document containing the information (e.g. photocopying/printing); and postage and other forms of communicating the information. VAT charges should be added to the fees only if the information is not also held by other organisations that are not public authorities.

7.2 Requests Costing More than the £450 Limit

Where the cost to the University for fulfilling the request will exceed £450, and the University is not otherwise obliged by law to answer the request, it will be within the University’s discretion as to whether the information should be released and whether a fee should be charged. Where a fee is to be levied, the maximum amount that may be charged is equivalent to the total estimated costs of:

  • Determining whether the University holds the information, locating and retrieving the information and extracting the information from a document containing it (including editing or redacting); and

  • Informing the applicant whether the University holds the information and communicating the information to the applicant by means of printing/photocopying and postage.

If a charge to the applicant is to be levied, a fees notice must be issued to the applicant detailing the amount payable, and the information need not be supplied until the fee is received (if payment is received by cheque, this is taken to be the date on which the cheque clears). Section 10(2) of the FoI Act states that:

"where the authority has given a fees notice to the applicant and the fee is paid in accordance with section 9(2), the working days in the period beginning with the day on which the fees notice is given to the applicant and ending with the day on which the fee is received by the authority are to be disregarded in calculating ... the twentieth working day following the date of receipt".

For example, if a request is received on Monday 1st, the University issues a fees notice on Thursday 4th, and payment is received on Wednesday 10th, the working days will be calculated as follows:

Monday 1st - request received
Tuesday 2nd - first working day after date of receipt
Wednesday 3rd - second working day
Thursday 4th - fees notice issued
Wednesday 10th - payment received
Thursday 11th - third working day

The applicant will have a maximum of 3 months to pay the fee from the date on which the Fees Notice is sent to the applicant. If payment has not been received by this time, the University will not be obliged to fulfil the request.

It should be noted that the right to know needs to be balanced by the University's need to carry out its core duties. For this reason, if the estimated cost of fulfilling a request would be particularly high, the Act allows for the University to decline the request on the grounds of time and cost, even if the applicant is willing to pay for the information. In such cases, the University should discuss with the applicant whether he or she would prefer to modify the request to reduce the cost, or advise the applicant as to what information can reasonably be supplied.

It should also be noted that the University does not need to provide information on request where information is made available in accordance with its publication scheme, including information that is available only upon payment. The FoIA has always been intended to build on existing channels for providing information: to provide access to information where that access did not previously exist, rather than replacing existing access regimes. Where information is reasonably accessible to applicants through other means, it is exempt from FoI and from its costs and charging regime.

Detailed guidance on the application of fees is available on the Ministry of Justice website.

8. Reasonable Delay of Access

8.1 Provision of Further Information

Under Section 1(3) of the FoIA, "where [the University] –

(a) reasonably requires further information in order to identify and locate the information requested, and

(b) has informed the applicant of that requirement"

the University is not required to comply with the request until that further information is provided.

Whilst the applicant may have made an FoI request under the terms of the FoIA, the 20 working day time limit would not start until the University had sufficient information to enable it to deal with that request.

Part II of the Access Code deals with the provision of advice and assistance where an authority is relying on Section 1(3) of the FoIA. The following guidance is provided in paragraph 9:

"where the applicant does not describe the information sought in a way which would enable the public authority to identify or locate it, or the request is ambiguous, the authority should, as far as practicable, provide assistance to the applicant to enable him or her to describe more clearly the information requested… It is important that the applicant is contacted as soon as possible, preferably by telephone, fax or email, where more information is needed to clarify what is sought."

8.2 Other Exclusions

The applicant’s access to the requested information might also reasonably be delayed or even withheld if the request is not made in writing or does not provide the applicant's name and address. The University will then have a general obligation to advise and assist so that the request can be submitted in an appropriate fashion or the required information provided.

[1] Section 45 of the FoIA requires the Secretary of State to issue a code of practice (known as the Access Code), which provides guidance to public authorities on their duties under Part I of the Act. The Code, available from the Ministry of Justice website, includes guidance on providing advice and assistance to those requesting information; transferring requests; consulting third parties before releasing information; and FoI and public sector contracts.