The Environmental Information Regulations 2004 are intended to transpose the provisions of European Directive 2003/4 into national law, giving rights of public access to information held by public authorities. Regulation 8, which reflects Article 5(2) of the Directive, allows local authorities to make reasonable charges for providing environmental information, although they cannot charge for permitting members of the public to see public registers or examine their records in situ.
In East Sussex County Council v Information Commissioner [2015] PLSCS 278 the Court of Justice of the European Union was asked to consider whether the county council’s charges for answering a property search company’s questions in CON29 (the Law Society’s standard local search form) were permissible. The answer to the question is hugely important to search companies – and to local authorities, who may now have to reconsider some aspects of their charging schemes to ensure that they comply with the rules.
The company required the information for commercial purposes, for onward transmission to a third party. The council was not trying to make a profit, but had imposed a standard scale of charges for each question, ranging from £1 up to £4.50, which took account of overheads, the full annual staff costs of maintaining the council’s database (even though some parts of the database were used for other purposes too), and the cost of replying to individual requests for information.
The court stated that the fact that some access to environmental information must be provided free of charge must limit the scope of the charges that local authorities can actually make. Furthermore, any interpretation of the expression “reasonable” in relation to the fees that were permissible that could have a deterrent effect on persons wishing to obtain information or that could restrict their right of access to that information must be rejected.
It followed that the costs of establishing and maintaining a database that could be used to answer requests for environmental information could not be taken into consideration when calculating charges. Indeed, it would be contradictory to allow public authorities to pass such costs on to persons who make requests for information if members of the public can examine such information in person free of charge.
However, public authorities can legitimately recoup the actual costs of producing the material in question. This means that local authorities can recover postal and photocopying costs, and also costs attributable to the time that members of staff spend answering individual requests for information, because such costs do not arise from the establishment and maintenance of environmental registers and the facilities to examine them. There was one important caveat to this; the total amount charged must not exceed a reasonable amount.
The court added that it did not consider that the charges made by the county council were unreasonable – especially as they would have to be reduced in order to exclude the costs associated with the establishment and maintenance of its database.
Allyson Colby is a property law consultant