Pursuant to the Act on Access to Public Information of 6 September 2001, everyone has the right to access public information. Usually it is provided free of charge, but there are exceptions to this rule.
Public information may be provided, among other ways, upon request, what results in the obligation of the obliged institution (i.e. the contracting authority in the public procurement procedure) to make it available in the manner and in form consistent with the request, as long as the institution has technical means to satisfy the request.
As a rule, access to public information is free. However, if the entity making the information available would incur additional costs related to the method of providing information indicated in the request or the need to transform it into the form indicated in the request, it may charge the applicant a fee that corresponds to these costs (judgment of the Voivodship Administrative Court in Gdańsk of 1 October 2014, file ref. no. II SA / Gd 594/14).
The Act on Access to Public Information does not specify the concept of “additional costs”, although it is assumed that an “additional cost” is the cost that goes beyond normal operation of the entity providing access to information. This could, for example, be the cost of processing or transforming the requested information. In such a situation, it may be necessary to incur expenses related to:
It should be stressed, however, that additional costs must exceed the normal operating costs of the entity making the information available. Therefore, providing information in the Public Information Bulletin or placing it in a generally accessible place at the seat of the disclosing entity does not count as additional costs.
Imposing the fee is completely optional and it is only up to the entity’s discretion whether it will charge the fee or not. Importantly, the mere fact that the applicant has not paid the fee, does not authorize the institution to issue decision refusing to provide public information or to disregard the request.
It is unacceptable to make the disclosure of public information conditional upon payment of fee, since the emergence of an obligation to pay the fee in the amount corresponding to the costs related to the manner of providing information indicated in the request and requesting the party to pay this fee only postpones the date for making this information available by the time specified in Art. 15 Sec. 2 of the Act on Access to Public Information (judgment of the Voivodship Administrative Court in Kraków of 8January 2015, file ref.no. II SAB / Kr 372/14)
Given the discretionary nature of imposing the “additional fee”, the provider of the information has to carefully consider each time whether the fee should be imposed. In addition, it should be shown that as a result of disclosing public information, in the manner requested, additional costs were incurred. Therefore, it is only about the costs actually incurred by the entity providing the information related to the requested method of disclosing the information.
Inherently, these costs vary depending on the request for providing public information. From the above follows the predominant position of administrative courts that fees for providing public information may not be introduced in the form of a price list or flat rates (judgment of the Voivodship Administrative Court in Kraków of 8 January 2015, file ref.no. II SAB / Kr 372 / 14).
Determining the amount of fee so that, on the one hand, it reflects “the actual costs related to the method of disclosure indicated in the request or the need to transform the information into the form indicated in the request”, and on the other, it is not overstated, may in practice be difficult. The fee may include the cost of paper, operating costs of printer, photocopier, scanner or other devices.
In addition, there should be no doubt that the fee for providing public information may also cover the costs of man-hours of employees or contractors who took part in technical activities such as printer operation, photocopying, graphic processing or sending public information, as well as in other analytical, logical and mathematical activities required to provide public information. This is evidenced by the established case law, according to which “when determining the amount of fee, the costs of labour related to the provision of information may be taken into account, if it is shown that this cost exceeds the normal operating cost of technical base and human (labour) resources of the authority” (judgment of the Voivodship Administrative Court in Warsaw of 28 October 2016, VIII SA / Wa 208/16).
Therefore, it should be stated that such a fee will consist of many variables and may depend on various elements: the number and value of man-hours, consumption of consumables and additional costs incurred by the obligated institution. The amount of the fee will therefore be determined on a case-by-case basis and it would be difficult to provide a predetermined fee.
Nevertheless, it will be possible to set fees for providing public information in the form of an order, but it must take into account all the variables that are taken into account when determining the amount of such fee. Correct determination of variables, their value and correlation between them may automatize the calculation of fees for providing public information, and thus significantly impact the budget of the obligated institution.
To sum up, the entity making the information available is obliged in each case to determine the scope of disclosing public information:
In other words, the entity providing public information has to assess the involvement of its financial and human resources. Only after a thorough analysis will it be able to correctly determine the fee for disclosing public information.
TGC Corporate Lawyers
TGC Corporate Lawyers offers full support to ensure that the obliged institutions follow the rules when providing public information. We also help to establish their information obligations and legitimacy of the imposed fees. We assist clients operating in capital groups, but also small and medium-sized enterprises, public companies, non-governmental and non-profit organizations.