The Information Tribunal (Tribunal) has decided that time wasted due to a genuine misunderstanding in originally dealing with a request for information can be taken into account when calculating the cost limit at which a public authority can refuse to comply with the request.
In England and Wales the current Freedom of Information Act (FOIA) thresholds above which there is no obligation on the authority to respond to a request is:
- £600 for central government and Parliament (equates to 24 hours work); and
- £450 for all other public authorities (equates to 18 hours work).
This fee is calculated taking into account staff time (for finding, sorting, and editing the information (legal costs and time taken to consider whether any of the information is exempt can not be included)), which can be charged at a maximum of £25 per hour. In Scotland, the Freedom of Information (Scotland) Act (FOISA) provides a cost threshold of £600 for all public authorities and this is calculated at a notional rate of up to £15 per hour.
On the 18 May 2009, the Tribunal ruled in a case brought against the NHS Trust in South Essex by Mrs B Francis. Mrs Francis had requested information about the treatment her son received in hospital before his death. The Trust sent her some, but not all, of the information. The Trust claimed it had misunderstood her request for certain pages that had been removed from reports previously disclosed to her. In a previous Tribunal hearing, the Trust confirmed it was happy to search for the relevant information in light of its misunderstanding and disclosed all of the papers it was able to locate.
However, Mrs Francis believed there were still further pages to be disclosed. The Trust claimed it had already spent well in excess of the time limit required under law and refused to undertake any further searches. The Information Commissioner (IC) agreed with the Trust, but Mrs Francis objected to this position.
The Tribunal then, despite realising "Mrs Francis' frustration that the limit set by section 12 should remove the need for the Trust to make further attempts to locate the documents", found that the initial misunderstanding did not prevent the Trust from relying on the financial limit as it had spent considerably more time on this request than it is required to under FOIA.
Even though public authorities are not required to provide information where the costs of responding will exceed the appropriate limit, they still have a duty to provide "reasonable advice and assistance" to help an applicant under section 16 of FOIA (in Scotland under section 15 of FOISA). So in cases of ambiguous or unclear requests it would still be advisable to contact the applicant to find out if the scope of their request could be narrowed to bring it under the limit. Despite the Francis decision, it also seems unlikely that the IC or the Scottish Commissioner would rule in an authority's favour, unless any misunderstanding was genuine.
Alternatively, a public authority can still decide to provide the information free of charge or can, in line with the Fee Regulations under FOIA and FOISA, with the agreement of the applicant, make a charge for responding to the request. Public authorities are also entitled to ask for an administrative charge for postage and copying of information.