Calculating costs where a request spans different access regimes

About this detailed guidance

This guidance explains how to calculate the costs of dealing with requests for the purposes of the Freedom of Information Act (FOIA) and the Environmental Information Regulations (EIR). In particular, this guidance explains what to do when either single or multiple requests capture information which is accessible under different access regimes. For example, a request could capture information, some of which is accessible under FOIA, some under the EIR and some under the subject access provisions of the UK General Data Protection Regulation (UK GDPR) and Data Protection Act 2018 (DPA). Read it if you have questions not answered in the guide to freedom of information, or the guide to the Environmental Information Regulations or if you need a deeper understanding of the issue.

For an outline of the general rules about calculating costs under FOIA, public authorities should first read our guidance on requests where the cost of compliance exceeds the appropriate limit.

In detail

What does the FOIA say?
What does the EIR say?
How do we deal with multiple requests, but where each request is for information falling under only one access regime?
How do we deal with a single request, where the information requested spans FOIA and another access regime?
How do we deal with multiple requests, some of which are for mixed information?

What does the FOIA say?

12. — (1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

(2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.

(3) In subsections (1) and (2) “the appropriate limit” means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases.

(4) The Minister for the Cabinet Office may by regulations provide that, in such circumstances as may be prescribed, where two or more requests for information are made to a public authority-

(a) by one person, or
(b) by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign,

the estimated cost of complying with any of the requests is to be taken to be the estimated total cost of complying with all of them.

What does the EIR say?

12. –(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that -

(a) ….
(b) the request for information is manifestly unreasonable

How do we deal with multiple requests, but where each request is for information falling under only one access regime?

Where you receive multiple requests, but each request is for information falling under only one access regime (FOIA, EIR, DPA) then you cannot aggregate the costs across the different access regimes.

In this situation, you can only take the aggregated costs of responding to freedom of information requests into account under FOIA. Similarly, you can only take the costs of responding to requests for environmental information into account when deciding if multiple, similar requests are manifestly unreasonable under the EIR.

Example

You receive the following requests in the same letter:

Request one – all “FOIA” information

Request two – all “EIR” information

Request three – all “EIR” information

Request four – all “FOIA” information

Request five – a subject access request

Outcome

You can aggregate the costs of responding to requests one and four under FOIA (provided they meet the requirements for aggregation, ie the requests are for the same or similar information).

You can aggregate the costs of responding to requests two and three under the EIR when considering whether the requests are manifestly unreasonable under regulation 12(4)(b).

You would need to deal with request five separately under the DPA.

This approach recognises the fact that the three different rights of access are independent of one another, having been established by separate pieces of legislation.

How do we deal with a single request, when the requested information spans FOIA and another access regime?

However, you may receive a single wide-ranging request for information. In this situation, you might need to consider some of the information for disclosure under FOIA, some under EIR and some under the DPA through the subject access provisions.

For example, a requester may ask for 'all correspondence sent to the Council Chief Executive over the last 12 months'. The information which falls within the scope of this wide-ranging request may include environmental and non-environmental information, as well as personal data of the applicant. However, it would defeat the purpose behind section 12 and regulation 12(4)(b) if you had to collate the requested information in order to decide what information falls under which access regime.

You should therefore take the following approach.

Step one - consider the request under FOIA

You can include in your estimate the costs of determining whether you hold the information. You can also include the costs of locating, retrieving and extracting all of the information under section 12 FOIA, provided the requirements of the fees regulations are met.

This is the case even when some of the requested information may be environmental information or the requester’s own personal data. This is because technically any request meeting the requirements of section 8 FOIA is a valid freedom of information request. This includes when some of the requested information is exempt. Environmental information is exempt under section 39 of FOIA. If some of the requested information is the personal data of the applicant, the exemption at section 40(1) would apply.

However, our guidance on requests where the costs of compliance exceed the appropriate limit explains that you cannot include any costs incurred when applying an exemption. Therefore, whilst you can include the estimated costs of identifying and collating all the information requested, you cannot include the costs of separating out and redacting any environmental information or any of the applicant’s own personal data under sections 39 and 40 FOIA respectively.

Step two - consider any additional obligations under the EIR and the DPA

Even though you may be able to refuse a request under section 12 of FOIA, you still need to consider your obligations under the EIR and the DPA.

This is because even if the request is refused under FOIA, the requester still has a separate right of access to environmental information under the EIR or to their own personal data under the DPA.

Environmental Information Regulations

Under the EIR, you can only consider the costs related to the provision of environmental information as defined at regulation 2(1).

However, you can consider the costs of collating all the information falling within the scope of the request, as long as doing so is a necessary first step because you cannot otherwise isolate the environmental information.

Examples

Decision notice FS50535161 concerns a request made to Conwy County Borough Council for information about a proposed retail development which ultimately did not go ahead. The request specifically asked for information about what was described as a failed transfer of land.

During the Commissioner’s investigation it was recognised that the request captured both environmental and non-environmental information. The council went on to rely on section 12(1) of FOIA and regulation 12(4)(b) of the EIR to refuse the request.

The Commissioner first considered the applicant’s rights under FOIA and the application of section 12. The appropriate limit for public authorities such as local authorities is £450. This equates to 18 hours work at £25 per hour.

The council confirmed that they held over 4,000 pages of information on the proposed development. Only some of that would relate to the failed transfer of land. Although they held the information electronically, they did not hold all of it in a searchable format. The council also satisfied the Commissioner that, in respect of the information they could search electronically, it was not possible to devise effective search terms. This means that any results returned would contain irrelevant information. This meant staff would need to review the information manually.

The council conducted a sampling exercise on 112 pages and found it took an average of 1 minute 30 seconds to check one page. That meant it would take over 100 hours to review all 4,000 plus pages. Even if the average time per page was reduced to 30 seconds, the task would take over 33 hours. This is still well beyond the appropriate limit of 18 hours, or £450.

The Commissioner therefore accepted that section 12 applied. The notice then considers whether, regardless of the position under FOIA, the council still had to provide any environmental information under the EIR.

In order to provide any environmental information, the council would first need to collate all the information that fell within the scope of the request. The Commissioner therefore accepted that it was appropriate to include the costs of reviewing all 4,000 plus pages, when considering whether the request was manifestly unreasonable under the EIR. Given those costs, the Commissioner found that regulation 12(b) was engaged. The Commissioner then went onto apply the public interest test and concluded the public interest in maintaining the exception outweighed the public interest in disclosure.

The public authority could refuse the request in its entirety by relying on a combination of section 12 and regulation 12(4)(b).

Under the EIR, you could include the cost of separating out the environmental information from the non-environmental information, when considering if the request is manifestly unreasonable. This is different from the position under FOIA because regulation 12(4)(b) is not limited by the FOIA fees regulations. Also, the identification of environmental information would not be classed as applying an exception under the EIR.

This may be relevant in cases where you have included the costs of collating all the information but where the total costs are not sufficient to render the request manifestly unreasonable.

In this situation, you may include the additional costs of separating out the environmental from the non-environmental information. You can take these costs into account when refusing a request under the manifestly unreasonable exception at regulation 12(4)(b).

UK GDPR and Data Protection Act

A public authority should separate out any information which is the personal data of the requester and deal with this in accordance with their usual data protection procedures.

How do we deal with multiple requests, some of which are for mixed information?

In these cases, you should apply the same logic as is given above. The following example demonstrates how this might work in practice.

Example

You receive the following requests in the same letter which all ask for similar information:

Request one – “mixed” information, ie some non-environmental (FOI) and some environmental information (EIR)

Request two – all “EIR” information

Request three – “mixed” information, ie some non-environmental (FOI) and some environmental information (EIR)

Request four – all “FOI” information

Request five – a subject access request

Outcome

You can aggregate requests one, two and four under FOI (assuming they meet the requirements for aggregation, ie the requests are for the same or similar information).

The Commissioner would allow the aggregation of the costs of providing the environmental information in response to requests one and three with request two under EIR.

You would need to deal with request five separately under the DPA.

Further reading