The Exemption Index: Section 12 – refusing on grounds of cost

In this post, FOI Man looks at the provision within FOI to refuse requests which exceed “the appropriate limit”.

Summary

It’s the constant lament of some public authorities and critics of FOI. FOI costs money. It’s a drain on resources. Well, yes, but as you and I know well, it is also of considerable value and can help the taxpayer to hold those authorities to account.

Nonetheless, they’re right. FOI does cost money. And if there were no limits on what authorities had to provide, there is a risk that they would grind to a halt. Hospitals would cease caring for the sick so that they could answer FOI requests. Children would be sent home from school so that teachers could complete their FOI homework. The Prime Minister would be busily redacting his own correspondence when he wasn’t answering MPs’ questions.

Section 12 is therefore an essential tool – a tap to regulate the flow of FOI requests and their impact. But to requesters it is often seen as an easy way for public authorities to avoid difficult questions.

Information affected

Any information – it depends on how much is asked for, how difficult it is to locate, and how long it would take to extract.

Things that FOI Officers need to know

Section 12 states that public authorities don’t have to comply with requests where they estimate that the cost of compliance will exceed the “appropriate limit” – which is itself set out in the The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulation 2004 SI 2004 No 3244 or the Fees Regulations
The appropriate limit is £600 for central government departments and £450 for most other public authorities. Staff time must be calculated at £25 per hour – hence the common reference to 24/18 hour limits for FOI requests
In estimating the cost, only the estimated cost of the following tasks can be considered: establishing if the information is held; locating the information; retrieving the information; and extracting the information
Costs of more than one request can be aggregated if they are on the same or a similar subject and are received from the same person or a campaign within 60 working days; different questions within a single piece of correspondence count as separate requests for this purpose (para. 39) (so can only be aggregated if they are on a similar subject); “same or similar“…“requires only a very loose connection between the two sets of information” (para. 26)
Redaction can’t be included in estimates
Estimates don’t have to be precise, but they do have to be “sensible, realistic and supported by cogent evidence” (para. 12); for example, it might be that the information is only held in two thousand paper files and in order to extract the information, staff would have to read each file, a realistic estimate for which would be one minute – 1 minute x 2000 = 2000 minutes/60 = 33.3 hours x £25 = £833.30 – ie well in excess of the appropriate limit (you don’t, however, have to provide the estimate to the requester (para. 46), as long as you explain how the requester can bring their request within the acceptable limit)
The Information Commissioner advises that the cost of retrieving information from commercial storage can be included (paras. 18-20) in the estimate of cost, as long as only the actual cost associated with retrieval of the information for the request is considered
If public authorities estimate that it will cost more than the acceptable limit to answer a request, the s.45 Code of Practice (para. 14) says that they should advise the requester how they can bring the request within the acceptable limit; it won’t infringe section 12 if they don’t (paras. 45-52), but it may be a breach of section 16 (advice and assistance)
Public authorities are not obliged to search up to the acceptable limit (para. 62); but if they start work on the request but later realise that the cost of compliance has reached the limit (para. 54), they can refuse to do more work on the request
Where a request is likely to include environmental information and other information, and a public authority is minded to refuse on grounds of cost, it is acceptable to refuse the request on grounds of both section 12 and the EIR’s exception for “manifestly unreasonable” requests at regulation 12(4)(b) (para. 23)
A public authority can legitimately refuse on cost grounds even if the reason the acceptable limit would be exceeded is because the authority has poor records management (para. 19); however, given that section 46 and its related Code of Practice place such an emphasis on records management, an authority that regularly fails to fulfil its obligations due to poor records management may face a few awkward questions from the Information Commissioner.

Things that requesters need to know

If you want to avoid a section 12 response:

don’t be greedy – keep your request tight and focussed
do research first – can you find out how the information is likely to be held?
read my handy guide to making FOI requests

It may well be worth challenging a response if:

the estimate and/or reasoning behind the estimate seem unreasonable
it doesn’t explain how to bring your request within the acceptable limit
it doesn’t tell you what the estimate is (the authority isn’t obliged to, but if its a reasonable estimate, they shouldn’t really have a problem with telling you)
you’ve asked several unrelated questions but the estimated cost of answering them has been aggregated
the authority has given you a subset of the information you requested but did not ask you first whether you would like that information, or would prefer to narrow your request in an alternative way (this is a breach of the section 16 duty to advise and assist).