Skip to main content
Hafan

Time limits for compliance under the Freedom of Information Act (Section 10)

Latest updates - last updated 1 August 2023

1 August 2023 - The following Further reading resources have been added:

  • Key questions on timeliness
  • Response rate calculator
  • Template action plan
  • Keeping internal consultations on FOI timely and transparent - a short guide for public authorities
  • FOI good practice case study - Wye Valley NHS Trust
  • FOI good practice case study - North Lincolnshire Council

9 February 2023 - The guidance has been converted into webpage format and has had stylistic updates.

The section entitled “Can we transfer requests to another authority?” has been updated to clarify that permission must be sought from the requester before a public authority can transfer a request.

The dates in the school example have been updated in the section entitled “Which variation may be applied without the Information Commissioner’s permission?”.

About this detailed guidance

This guidance discusses in detail the time limits for compliance requirements when dealing with requests under FOIA and is written for use by public authorities. Read it if you have questions not answered in the Guide.

In detail

What does FOIA say?

Section 10 of FOIA states:

10.—(1) Subject to subsections (2) and (3), a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt.

(2) Where the authority has given a fees notice to the applicant and the fee is paid in accordance with section 9(2), the working days in the period beginning with the day on which the fees notice is given to the applicant and ending with the day on which the fee is received by the authority are to be disregarded in calculating for the purposes of subsection (1) the twentieth working day following the date of receipt.

(3) If, and to the extent that—

(a) section 1(1)(a) would not apply if the condition in section 2(1)(b) were satisfied, or

(b) section 1(1)(b) would not apply if the condition in section 2(2)(b) were satisfied,

the public authority need not comply with section 1(1)(a) or (b) until such time as is reasonable in the circumstances; but this subsection does not affect the time by which any notice under section 17(1) must be given.

(4) The Secretary of State may by regulations provide that subsections (1) and (2) are to have effect as if any reference to the twentieth working day following the date of receipt were a reference to such other day, not later than the sixtieth working day following the date of receipt, as may be specified in, or determined in accordance with, the regulations.

(5) Regulations under subsection (4) may—

(a) prescribe different days in relation to different cases, and

(b) confer a discretion on the Commissioner.

(6) In this section—

“the date of receipt” means—

(a) the day on which the public authority receives the request for information, or

(b) if later, the day on which it receives the information referred to in section 1(3);

“working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.

What are the timescales for responding to a request under FOIA?

Section 10 of FOIA sets out the timescales within which you must respond to a FOIA request.

These timescales apply where you have:

  • a duty under section 1(1)(a) to confirm or deny whether you hold the information;
  • a duty under section 1(1)(b) to provide information you hold to the requester;
  • a duty under section 17 to issue a refusal notice explaining why you have refused a request.

Section 10 specifies that you must comply promptly, and no later than 20 working days following the date of receipt of the request. The Information Commissioner interprets this to mean that ‘day 1’ is the first working day after the request has been received.

However, there is provision for you to claim a reasonable extension to this limit, up to an additional 20 working days, if you need more time to consider the public interest test.

Section 10 also allows you to apply variations to the normal 20-working-day timescale in some limited circumstances.

Can we refuse a request?

If you are relying on one of the exemptions in Part II of FOIA to refuse to confirm or deny whether information is held or to refuse to provide information, then under section 17(1), you have  a duty to issue the requester with a refusal notice. This must be done within the time for compliance with section 1(1). 

As outlined earlier, the time for compliance with section 1(1) is defined by section 10(1), which means the notice must be issued promptly and within 20 working days following the date of receipt of the request. 

More detailed information on issuing refusal notices can be found in our guidance Refusing a request: Writing a refusal notice.

If only some of the requested information is exempt, you will still have to comply with your section 1(1) duties about disclosing any information that is not covered. This should be done promptly and within 20 working days.

Why do we have to respond promptly and within 20 working days?

Section 10(1) states you must comply with section 1(1) of FOIA ‘…promptly and in any event not later that the twentieth working day following the date of receipt.’

This means that to comply with section 10(1) when you are not relying on a part II exemption and you hold the requested information, you will need to both issue the requester with written confirmation of this and provide the information promptly, and within 20 working days following the date of receipt.

If you are not relying on a part II exemption and you do not hold the information, your only requirement under section 10(1) is to inform the requester of this in writing promptly and within 20 working days following the date of receipt. 

It also follows that a general response (such as a holding letter or acknowledgement) issued within 20 working days that fails to confirm or deny whether the information is held or to provide information, will not be sufficient to comply with section 10(1).

While 20 working days is the normal timescale for compliance, section 10 enables you to extend or vary this time limit under certain circumstances. This is covered in more detail later in the guidance.

What is the definition of promptly?

Your obligation to respond promptly means you should comply with a request as soon as is reasonably practicable.

This is linked to your obligation to respond within 20 working days following the date of receipt, but you should treat it as a separate requirement.

You will therefore need to both respond promptly and within 20 working days to comply with section 10(1).

You should regard the 20-working-day limit as a ‘long stop’, in other words the latest possible date on which you may issue a response.

If you provide your response close to, or on, the final day of the 20-working-day limit, you ought to be able to both account for, and justify, the length of time taken to comply with the request.

Example

In Decision Notice FS50307811 the complainant maintained that the University of Cambridge had failed to respond promptly to his request for information about the restrictions contained in its post-dismissal compensation settlements. The university had disclosed some of this information on the 20th working day. 

The university’s submissions to the Information Commissioner showed that its HR team had been required to examine each agreement individually to provide definitive information, as the settlements had all been negotiated separately. The team had held a meeting to discuss any issues concerning the information, at which point it decided to take legal advice. The matter was then referred to the university’s in-house lawyers, who took around two weeks to draft their response. The university explained that this turnaround time was because its legal advisers had a heavy workload in providing advice to all departments of the institution, and also because they were not specialists in freedom of information, meaning they might be expected to have to conduct their own research before providing advice.    

The Information Commissioner did not uphold the complaint, stating that:

‘…the greater part of the time taken in responding to the complainant’s request was taken up with the location and verification of the requested information by University’s HR department and considerations by its legal team. Noting that neither department has a primary responsibility for freedom of information and is likely to be fully engaged with its daily tasks, the Commissioner is unable to conclude that these time periods were unreasonable in the circumstances.

‘For the reasons expressed above, therefore, the Commissioner concludes that the University’s initial response to the complainant’s request was provided promptly and there does not appear to have been undue delay in its handling of the request.’ (paragraphs 24 & 25)

How do we calculate the date of receipt?

Section 10(6) states:

10.—(6) In this section—

“the date of receipt” means—

(a) the day on which the public authority receives the request for information, or

(b) if later, the day on which it receives the information referred to in section 1(3);

“working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom. 

The date of receipt will be either:

  • the day on which the request is physically or electronically delivered to you, via a general or dedicated address, online portal, email address or directly into the email inbox of a member of staff; or
  • if you have asked the requester for further details to identify and locate the requested information, the date on which the necessary clarification is received.

You should ideally publish both a postal and email address to which people can send requests. If you have an online submission process for requests, you should send a copy of the completed request form to applicants alongside any acknowledgment notice.

Remember, you still have a duty to deal with requests received anywhere within the public authority.

An exception to this will be where the request has been emailed to an absent member of staff, and this has generated an out-of-office message with instructions on how to re-direct the message to another contact.

If this is so, the date of receipt will be the day the request arrives in the inbox of that contact.

To cover periods of absence, it would be advisable for staff to use the automated out-of-office facility for emails and to provide alternative contact details.

If an alternative contact has been provided in an out-of-office message, that contact should inform the original recipient of the action taken regarding the request.

In situations where you have outsourced services to a third party (for example a contractor) and that third party receives a request, the Information Commissioner deems the date of receipt to be the date you receive the request from the third party. However, the third party should be aware of your obligations under FOIA and should forward the request to you as soon as possible.

When receiving a request, it is good practice to acknowledge its receipt and to refer to the 20-working-day time limit, so that requesters know their request is being dealt with.

What is the definition of a working day?

FOIA defines a working day as ‘…any day other than a Saturday, Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom’.

You should take particular note that any day that is a bank holiday in any one of the four nations comprising the UK will be a non-working day for the purposes of FOIA.

For example, St. Patrick’s Day can be counted as a non-working day in all countries covered by the legislation, even though it is only a bank holiday in Northern Ireland, and not in England, Scotland or Wales. 

If you are closed for privilege days in addition to bank holidays, these will not count as non-working days.

For the purposes of FOIA, a ‘working day’ will end at midnight regardless of your opening hours. Therefore, you should regard any request that arrives before that time as received that day.

This principle was established in the Tribunal case of Berend v ICO and London Borough of Richmond upon Thames (EA/2006/0049 & 50, 12 July 2007), which stated: “There is no definition within the Act as to the length of a day and in the absence of any such definition, we are satisfied that a day ends at midnight…”. (paragraph 63)

What about requests received on non-working days?

Section 10 of FOIA defines the date of receipt as ‘the day on which the public authority receives the request for information’.

As there is no requirement for this to be a working day, the date of receipt can also be a non-working day such as a weekend or bank holiday.

If the request is received on a non-working day, the clock will still start on the following working day.

However, if the following day is another non-working day, the clock will start on the next working day after that.

Example 1

A public authority that is closed at weekends receives a request on a Saturday. As the time for compliance only commences on the next working day, the clock will start on the following Monday.

Example 2

The same public authority receives a request on Easter Sunday. As the following Monday is a bank holiday, the clock will begin on the next working day after that, which in this case would be Tuesday.

What is the effect of requesting clarification under section 1(3)?

Section 10(6) says that the date of receipt will be the day on which you receive the request or ‘if later, the day on which you receive the information referred to in section 1(3)’. 

This effectively means that where you need more details to identify and locate the requested information and you have contacted the requester for further clarification, the date of receipt will be the day you receive the information you need to comply with the request.

The 20-working-day clock will start the day after you receive the necessary clarification.

Example

On Monday 11 September you receive a request for the following:

“Please provide me with all the information you hold about my ancestor John Smith, who served in the British Army during the 19th Century.”

Although the applicant has described the information he wants, his description is not sufficient to enable you to identify and locate the correct record.

You write back to explain that you require further details about the dates, locations and regiment names to find the information.

On Tuesday 19 September you receive the clarification you need to locate the information.

In this case, therefore, you would treat 19 September as being the date of receipt for the request.

The 20-working-day clock will start on the following day, which in this case will be Wednesday 20 September.

If you do need more information to process a request, there should be no undue delay in contacting the requester.

This point is emphasised in sections 2.6 to 2.9 of the Section 45 Code of Practice which states, ‘…it is important that the applicant is contacted as soon as possible, preferably by telephone, fax or email, where more information is needed to clarify what is sought.’

What about advice and assistance provided outside section 1(3)?

It is important to bear in mind that sections 1(3) and 10(6)(b) apply only if you cannot comply with the request without further information.

If you do have enough information to identify and locate the information, and are offering advice and assistance for another reason – for example to ask if the requester is interested in any other information – the clock does not stop but continues to run from the original date of receipt.

However, if you have refused the request, and your offer of advice and assistance is designed to help the requester submit a reworked version you can comply with, you should treat as a new request any later revised request from the requester, and reset the time for compliance to 20 working days.

Example

On 4 March a requester asks you to provide:

‘All the information you hold about every soldier named John Smith who served in the British Army during the 19th Century.”

You believe you can identify and locate the information from the description provided, so the 20-working-day clock starts.

However, having considered the volume of the information caught by the request, you estimate that the cost of complying will exceed the section 12 limits.

On 10 March you issue the requester with a refusal notice. At the same time you offer advice and assistance to help him narrow the scope of the request.

The requester takes your advice and submits a more focused version of the request on 15 March. This is effectively a new request so the time for compliance resets to 20 working days, with the ‘date of receipt’ being 15 March.

Can we pause the clock to collect fees?

Section 10(2) states:

10—(2) Where the authority has given a fees notice to the applicant and the fee is paid in accordance with section 9(2), the working days in the period beginning with the day on which the fees notice is given to the applicant and ending with the day on which the fee is received by the authority are to be disregarded in calculating for the purposes of subsection (1) the twentieth working day following the date of receipt.

If you intend to charge for payment of fees, you must issue a Fees Notice to the requester. More information can be found in the Fees Regulations for FOIA and Data Protection 2004.

Our interpretation of section 10(2) is that you can disregard from your calculation of the 20-working-day time limit the period starting from the day you give the Fees Notice and ending on the day you receive the payment.

You should therefore pause the 20-working-day clock on the day you issue the Fees Notice. The clock will restart the day after you receive the fee.

If the requester elects to pay by cheque, the clock will only restart once this has cleared. However, cheques should be banked promptly to ensure there is no undue delay in processing the request.

Should the requester fail to pay the fee within three months of your issuing the Fees Notice, then under section 9(2) of FOIA, you are no longer obliged to comply with the request.

Can we transfer requests to another authority?

If you do not hold the information but you have elected to transfer the request to another authority, the following points apply:

  • You, the original authority must promptly, and within the 20-working-day time for compliance, give the requester written notification that you do not hold the requested information and let them know which other public authority may hold it.
  • If you wish to transfer a request directly to another public authority, you may only do so with the requester’s agreement.
  • The 20-working-day clock is reset for the receiving authority and will start the day after it receives the request.

It is good practice for you, as the original authority, to facilitate the transfer as soon as practicable after you have obtained the requester’s consent.

Further good practice advice on transferring a request can be found in Part III of the Section 45 Code of Practice 2018.

Can we have an extension to consider the public interest test?

Section 10(3) states:

10—(3) If, and to the extent that—

(a) section 1(1)(a) would not apply if the condition in section 2(1)(b) were satisfied, or

(b) section 1(1)(b) would not apply if the condition in section 2(2)(b) were satisfied,

the public authority need not comply with section 1(1)(a) or (b) until such time as is reasonable in the circumstances; but this subsection does not affect the time by which any notice under section 17(1) must be given.

Section 10(3) enables you to extend the 20-working-day limit up to a ‘reasonable’ time if:

  • you need more time to determine whether or not the balance of the public interest lies in maintaining an exemption; or
  • you need more time to consider whether it would be in the public interest to confirm or deny whether you hold the information.

This extension will therefore only apply to requests where you consider that a ‘qualified exemption’ (an exemption that is subject to a public interest test) is engaged. 

FOIA does not define what a ‘reasonable’ extension of time might be. However, our view is that you should normally take no more than an additional 20 working days to consider the public interest. This means the total time spent dealing with the request should not exceed 40 working days. An extension beyond this should be exceptional.

Examples of such circumstances could include extreme pressures placed on you by a major incident or exceptional levels of complexity involving a number of external parties. You will need to demonstrate that the length of any time extension is justified.  

As section 10(3) only permits extensions for further consideration of the public interest, you cannot use the additional time to determine whether the exemptions themselves are engaged.

This means you should have identified the relevant exemptions, and satisfied yourself that they apply, within the initial 20-working-day time limit.

If you claim an extension, you should still issue a refusal notice explaining which exemption applies and why within 20 working days. This notice must explain that you need more time to consider the public interest test, and give an estimate of the date on which you are likely to make a final decision.

Once you reach that final decision, you must disclose the information to the requester or issue a second refusal notice explaining why you have found the public interest to be in favour maintaining the exemption.

What are the variations to the time for compliance?

Sections 10(4) and 10(5) give the Secretary of State the power to make regulations that extend the 20-working-day time limit to a maximum of 60 working days. These regulations may prescribe different time limits in relation to different cases.

10—(4) The Secretary of State may by regulations provide that subsections (1) and (2) are to have effect as if any reference to the twentieth working day following the date of receipt were a reference to such other day, not later than the sixtieth working day following the date of receipt, as may be specified in, or determined in accordance with, the regulations.

10—(5) Regulations under subsection (4) may—

(a) prescribe different days in relation to different cases, and

(b) confer a discretion on the Commissioner.

The Freedom of Information (Time for Compliance with Request) Regulations introduced variations to the 20-working-day limit for requests to schools; information contained in public records; requests to the armed forces; and information held outside the UK. (There are three Statutory Instruments 2004 No.3364, 2009 No. 1369 and 2010 No. 2768).

You may claim some of these variations without first consulting the Information Commissioner, but you can apply others only at his discretion.

You should note particularly that even if a variation applies, the section 10(1) duty to respond to the request promptly still applies.

Which variations may be applied without the Information Commissioner’s permission?

(i) Requests to schools

This variation applies to all schools covered by FOIA, including maintained schools, academies, pupil referral units and state-funded nurseries.

The Regulations state that the time for compliance will be whichever of these is the shorter period:

  • 20 working days following the date of receipt, excluding any day that is not a school day (this effectively equates to a period of 20 school days).
  • 60 working days following the date of receipt.

A ‘school’ day will be any day on which there is a session and the pupils are in attendance.

‘Working days’ exclude school holidays and ‘inset’ or training days where the pupils are not present.

The following example illustrates how this variation works in practice.

Example

A school receives a request on Wednesday 26 July. The school is scheduled to close for the summer holidays on Friday 28 July and will reopen on Monday 11 September.

When calculating the time for compliance, the school recognises that it will not have to count any of the days between 26 July and 11 September, as these are non-school days for the purposes of the Regulations.

After taking this into account, it determines that a period of 20 school days will end on Wednesday 4 October.

It then calculates the date on which 60 working days would end, finding that this will fall on Friday 20 October.

This means that, if the school cannot respond more promptly, the time for compliance in this case will be 20 school days because this period will end before an interval of 60 working days has passed.

(ii) Information contained in public records

You may extend the time for compliance to 30 working days if the request:

  • is received by an appropriate records authority or a person at a place of deposit appointed under section 4(1) of the Public Records Act 1958; and
  • it relates to information that may be contained in a public record and has not been designated as open information for the purposes of Section 66 of FOIA.

This variation is designed to allow the records authority time to consult the responsible or transferring authority who may need to consider whether any of the information is exempt.

Which variations require the Information Commissioner’s permission?

The following variations can only be employed if:

  • you have, within 20 working days following the date of receipt of the request, applied to the Information Commissioner for an extension of time in which to comply; and
  • the Information Commissioner has agreed to the extension.

(i) Requests to the armed forces

You can ask the Information Commissioner for an extension if you cannot meet the request without obtaining information (recorded or unrecorded) from any individual (whether or not they are a member of the armed forces), who is actively involved in an operation, or in preparation for an operation, of the armed forces.

(ii) Information held outside the UK

You may also request permission to apply an extension if you will be unable to respond within the standard 20-working-day limit because you need to obtain information held outside the UK to comply with the request.

If the Information Commissioner has agreed to one of the variations above, the Regulations say he can extend the time for compliance to one that he considers reasonable in all the circumstances, up to a maximum of 60 working days following the receipt of the request.

Further reading