Line to take - LTT4 - Use of specialist staff or software

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  • FOI/EIR: FOI
  • Section/Regulation: s12
  • Issue: Use of specialist staff or software
  • Source: Information Tribunal
  • Details: Harper / Royal Mail (15 November 2005), Alasdair Roberts / IC (4 December 2008)
  • Related Lines to Take: LTT2, LTT3
  • Related Documents: EA/2005/0001 (Harper), EA/2008/0050 (Roberts), FS50058993, FS50092955
  • Contact: EW/HD
  • Date: 13/02/2009
  • Policy Reference: LTT4
  • © Copyright Information Commissioner's Office, re-used with permission
  • Original source linked from here: LTT

Line to take

If a public authority requires contract staff to determine whether the requested information is held or in locating, retrieving or extracting the information, the full cost charged by the contract staff cannot be taken into account when calculating costs under s.12. Instead, the use of any staff time can only be included at the rate of £25 per hour.

However the full costs of purchasing specialist software to carry out these activities can be taken into account in calculating the costs limit under s.12.

Further Information

Regulation 4(4) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the Fees Regulations) provides that:

“… to the extent to which any of the costs which a public authority takes into account are attributable to the time which persons undertaking any of the activities mentioned in paragraph (3) on behalf of the authority are expected to spend on those activities, those activities are to be estimated at a rate of £25 per person per hour”

Therefore, where contractors are involved in determining whether the public authority holds the requested information, or in locating, retrieving or extracting that information, the total cost charged by the contractor to the public authority cannot be included in calculating the appropriate limit - instead any staff time (either employee or contractor) can only be taken into account at the rate of £25 per hour.

This was confirmed by the Tribunal in the case of Alasdair Roberts v the Information Commissioner (see paragraph 14 in particular) and was also the approach taken in an earlier decision notice of the Commissioner (see case FS50092955 (paragraphs 31 and 40)).

In the case of Harper v the Royal Mail, the Tribunal noted that the recovery of deleted information might involve the use of specialist staff time or specialist software. This, it suggested, would have cost implications, “which could be significant.” (para 27). In such cases, s12 might therefore be relied on, where costs were estimated to exceed the appropriate limit and although not relevant in the above case, it is clear that other activities - such as the querying of a database - may also involve the use of specialist staff although as above, this could only be taken into account at the rate of £25 per hour.

In terms of the use of specialist software, it is highly unlikely that simply running software would incur costs. However, should a public authority have to purchase software in order to carry out any of the activities listed in the Fees Regulations, it will be able to take account of the full cost of the purchase in calculating whether or not the appropriate limit will be exceeded. Although as Regulation 4(3) states that a public authority can take into account costs it ‘reasonably expects to incur’, it is likely that we would want to see evidence that existing software could not do the job and estimates of any proposed purchase.