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Colleges can charge fees for information requests

As public sector organisations, colleges are sometimes faced with requests from staff, learners and third parties wanting confidential information. These take time and effort to deal with and can be vexatious, therefore draining colleges’ resources. Guidance has now been given by the courts on this. Recent case law has also clarified the extent to which colleges can charge for information made via publication schemes. All in all, good news for colleges.

Under the Freedom of Information Act 2000 (“FOIA”), members of the public can request information held by colleges. This information could be recorded in printed documents, computer files, letters, emails, photographs, and sound or video recordings. Colleges may face requests from a wide range of people including staff, students, journalists, campaign groups, local residents or non-UK residents. What can they do?

Well, colleges have to treat all requestors equally so cannot refuse to disclose information on the basis of who is asking for it. However they do not have to respond to “vexatious” requests. The courts have recently issued guidance on what constitutes a vexatious request, which is particularly helpful as the FOIA does not contain a definition.

The Information Commissioner is responsible for enforcing the FOIA and promoting good practice. Previously, a college may have believed a request to be vexatious and, without a definition in the FOIA, turned to the Information Commissioner’s guidance. The guidance however contained five criteria and suggested you would need strong arguments in at least two of those five. This meant that there was a high threshold for refusing a request on the grounds that it was vexatious.

The Upper Tribunal recently held (in Information Commissioner v Dransfield [2012] UKUT 440 (AAC)) that while the Information Commissioner’s guidance is helpful when trying to decide if a request is vexatious, it is only guidance and public authorities should be able to find requests vexatious where they are “grossly excessive or ill intentioned”.

The Tribunal held that the test is whether the request is a “manifestly unjustified, inappropriate or improper use of a formal procedure”, and that the background and history of the request are relevant. This should prove helpful to colleges faced with vexatious requests, while ensuring that genuine requests are responded to in the interests of transparency.

As well as responding to requests for information, colleges have an obligation under the FOIA to disclose certain information pro-actively, that is, not waiting for someone to request it. This is done via a publication scheme. The Information Commissioner’s Office (ICO) has two versions of a model publication scheme. The scheme outlines what information should be published. Public authorities must adopt one of the ICO-approved schemes.

The ICO has also published a definition document for colleges of further education, which gives examples of what sort of information should be provided for a college to meet its commitments under the scheme. This covers areas such as: the college’s management structure, funding grants and tuition fees, policies and procedures, information on student admissions, services offered, student union activities, learning strategy and careers advice provision.

Colleges can charge for information published under the scheme, although the FOIA does not specify what the charges are (whereas it does for information released in response to a request). The charges must, however, be justified and transparent and information on charges must be given in advance.

Charges can be made for communicating the information e.g. photocopying and postage (but not for publishing information online), where fees are permitted by other legislation and for producing items such as books and maps.

Earlier this year the First Tier Tribunal gave its decision in Davis v ICO and Health and Social Care Information Centre EA/2012/0175.  In this case a journalist made a request for information but the Health and Social Care Information Centre refused, arguing that the information was reasonably accessible elsewhere. Their publication scheme allowed for tailor made information to be provided, and stated that charges would apply (in this case the charge was £1,500). The journalist argued that the charge was so high that it meant the information was not reasonably accessible to a person of ordinary means.

The Tribunal found that the publication scheme had been approved by the ICO and it was possible to ascertain the fee from the scheme and therefore the information was reasonably accessible. The Tribunal also said that in any case the fee was reasonable considering the work, skill and time that would be required. The only option the journalist could really take is to refer his concerns to the ICO as it has the power to revoke the scheme.

Colleges need to make sure they have an approved publication scheme in place and that it makes clear provision for charges, but they can be reassured that they can charge fees for reasonable costs they incur.

Matthew Kelly is a partner at law firm Thomas Eggar, which handles a wide range of related litigation, such as issues relating to FE governance and capital projects

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