Real property – Environmental information – Public access – European Union – Claimant county council making charge for supplying environmental information – Second defendant property search company challenging charge – First defendant information commissioner finding charge not in accordance with European legislation – Claimants appealing to First-tier Tribunal – Tribunal referring to European Court of Justice for preliminary ruling – Whether charge properly including partial cost of maintaining database and overheads – Whether EU law precluding national legislation where reasonableness of charge subject only to limited administrative and judicial review – Preliminary ruling made
In connection with a real property transaction, the second defendant, a property search company, requested environmental information from the claimant county council, in order to supply the information received for commercial purposes to persons involved in the transaction. The claimants, which frequently received such requests, known as “property searches”, supplied the information requested and imposed several charges amounting to a total of £17, applying a standard scale of charges. Much of the data used for replying to property searches was processed and organised by an information team of the claimants in a database containing data in electronic or paper form. The database was also used by other departments for carrying out various tasks.
The scale of charges used by the claimants allocated to each type of information requested a standard cost which was applied uniformly and calculated on the basis of an hourly rate, taking into account the time spent by the whole of the information team on maintaining the database and replying to individual requests for information. In accordance with the claimants’ practice, the charges levied were intended to cover the entire costs incurred by the claimants in performing those two activities, without making any profit. The hourly rate used to determine the amount of the charges included a share of overheads in accordance with normal accounting principles.
Following a complaint by the second defendant against the charges made, the first defendant Information Commissioner issued a decision notice finding that the charges were not in accordance with regulation 8(3) of the Environmental Information Regulations 2004, in that they included costs other than postage or photocopying costs or other disbursements associated with supplying the information requested. The claimants, supported by the Local Government Association, appealed to the First-tier Tribunal.
The tribunal stayed the proceedings and referred to the European Court of Justice for a preliminary ruling as to: (i) whether a charge of a reasonable amount for supplying a particular type of environmental information include could include part of the cost of maintaining a database used by the public authority to answer requests for information of that type and overhead costs attributable to staff time properly taken into account in fixing the charge; and (ii) whether it was consistent with articles 5(2) and 6 of Directive 2003/4 of the European Parliament and of the Council (on public access to environmental information) for a member state to provide in its regulations that a public authority might charge an amount for supplying environmental information which did “… not exceed an amount which the public authority is satisfied is a reasonable amount” if the decision of the public authority as to what was a reasonable amount was subject to administrative and judicial review as provided under English law.
Held: The preliminary ruling was made.
(1) In accordance with article 5(2) of Directive 2003/4, public authorities might make a charge for supplying any environmental information, but the charge had not to exceed a reasonable amount. In principle, it was only the costs that did not arise from the establishment and maintenance of registers and lists of environmental information held by public authorities or information points, and facilities for the examination of that information, that were attributable to the “supplying” of environmental information and were costs for which the national authorities were entitled to charge under article 5(2). Consequently, the costs of maintaining a database used by the public authority for answering requests for environmental information could not be taken into consideration when calculating a charge for “supplying” environmental information. By contrast, the costs of “supplying” environmental information which could be charged under article 5(2) encompassed not only postal and photocopying costs but also the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, which included the time spent on searching for the information and putting it in the form required. Overheads, properly taken into account, could in principle be included in the calculation of the charge provided for in article 5(2), only to the extent that they were attributable to a cost factor falling within the “supplying” of environmental information.
(2) In Directive 2003/4, the expressions “be reconsidered” and “reviewed administratively” in article 6(1) and “be reviewed” in article 6(2) did not determine the extent of the administrative and judicial review required by the Directive. In the absence of further detail in EU law, it was for the legal systems of member states to determine that extent, subject to observing the principles of equivalence and effectiveness. As regards the principle of equivalence, there was nothing to suggest that the detailed procedural rules governing actions brought under English law for safeguarding rights which individuals derived from EU law were less favourable than those governing similar actions for safeguarding rights of individuals based on domestic law. As regards the principle of effectiveness, in the present case that principle required that protection of the rights which persons making requests for information derived from Directive 2003/4 was not subject to conditions that could make it impossible in practice or excessively difficult to exercise those rights.
Nigel Pleming QC (instructed by Bevan Brittan LLP) appeared for the claimants; Anya Proops (instructed by in-house solicitor) appeared for the first defendant; Neil Clayton appeared for the second defendant; Nigel Pleming QC (instructed by Bevan Brittan LLP) appeared for the Local Government Association; James Maurici and Sasha Blackmore (instructed by the Treasury Solicitor) appeared for the UK Government; C Thorning and M Wolff (agents) appeared for the Danish Government; L Pignataro-Nolin, L Armati and J Norris-Usher (agents) appeared for the European Commission.
Eileen O’Grady, barrister
Click here to read transcript: East Sussex v Information Commission
