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If you want to charge a fee for providing a dataset, you need to consider both:

  • any fee under section 9 of FOIA for providing the information; and
  • any fee for making the dataset available for re-use under a specified licence.

A request for a dataset is a request for information under FOIA. You may charge a fee for this, as with any request, in accordance with section 9 of FOIA and regulation 6 of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the Fees Regulations”). Under regulation 6(3) of the Fees Regulations, the costs that you can take into account when calculating the fee include the costs of complying with any obligation under section 11(1) of FOIA as to the means or form of communicating the information. This does not include the cost of providing a dataset in a re-usable form, since the obligation to do this is in section 11(1A), not section 11(1).

As explained in the section on Should we license re-use under FOIA or the RPSI?, if the dataset is covered by the RPSI, then you must license it for re-use under the RPSI. In that case, you must use the charging provisions in regulation 15 of the RPSI to determine any fee which you charge for allowing re-use. If the dataset is not covered by the RPSI, and it must be licensed for re-use under FOIA, then any re-use fee must be determined according to the FOIA dataset provisions.

Section 11A(3) says:

(3) The public authority may exercise any power that it has by virtue of regulations under section 11B to charge a fee in connection with making the relevant copyright work available for re-use in accordance with subsection (2).

The regulations made under section 11B give you a statutory power to charge a fee for making a dataset available for re-use. However, the Code of Practice encourages you to make your datasets available for re-use under the OGL. There is no charge for re-use under this licence.

Section 11B says that the Minister for the Cabinet Office may issue fees regulations “in connection with making relevant copyright works available for re-use under section 11A(2) …” and specifies the scope of these regulations. The regulations referred to in section 11B are the Freedom of Information (Release of Datasets for Re-use) (Fees) Regulations 2013 No. 1977 (referred to here as the “Datasets Re-use Fees Regulations”). They do not replace the Fees Regulations. They deal with fees for making datasets that are relevant copyright works available for re-use. The Fees Regulations deal with fees for communicating the information to the requester.

Regulation 2 of the Datasets Re-use Fees Regulations set out how to calculate the re-use fee:

2 …

(2) The total fee shall not exceed the sum of–

(a) the cost of collection, production, reproduction and dissemination of the relevant copyright work; and

(b) a reasonable return on investment.

(3) A fee shall be determined, so far as is reasonably practicable,—

(a) in accordance with the accounting principles applicable to the public authority from time to time, and

(b) on the basis of a reasonable estimate of the demand for a relevant copyright work over the appropriate accounting period.

(4) A fee charged by a public authority for a relevant copyright work shall not include the cost of an activity mentioned in paragraph (2)(a) if that cost has been included in any other fee charged under the Act to the same applicant by that authority in respect of that work…

Where you are charging a fee for re-use under FOIA, you must calculate the charge according to the relevant accounting principles and an estimate of demand, as far as reasonably practicable. The total fee cannot exceed the cost of collecting, producing, reproducing and disseminating the dataset, plus a reasonable return on investment. This is relevant to you if your authority operates on a commercial basis to cover costs.

The Datasets Re-use Fees Regulations also say that you shall, so far as reasonably practicable, establish standard fees for re-use. You must explain the basis for the re-use fee if the requester asks you to.

The purpose of regulation 2(4) is to prevent ‘double charging’. If you are charging the requester a fee under regulation 6 of the Fees Regulations, you cannot charge the requester for the same expenditure under the Datasets Re-use Fees Regulations.

You may have powers under other legislation (ie other than FOIA) to charge a fee for making relevant copyright works available for re-use. Section 11A(4) preserves these powers. Furthermore, regulation 2(8) of the Datasets Re-use Fees Regulations makes clear that if you do have the power to charge a fee for re-use under other legislation, you cannot charge a fee under these Regulations. You must use your power under the other legislation instead.

If you can make a charge under the Datasets Re-use Fees Regulations and intend to do so, you must give the requester a re-use fees notice. You don’t need to provide the dataset for re-use until you’ve received payment. If you are also issuing a fees notice under section 9 of FOIA (ie a fee for communicating the information in response to the FOIA request), then you may combine this with the re-use fees notice. The provisions regarding fees notices are in section 11A(5)-(7) of FOIA.

In most cases we expect that you will use the OGL to make datasets available for re-use. This avoids the issue of making a charge for re-use under section 11B.