Charges under Reg 8 EIR: a Power Cut for Public Authorities

In Kirklees Council v IC & Pali Ltd [2011] UKUT 104 (AAC) the Upper Tribunal held, in the context of property search information, that reg 8(2) EIR precluded an authority from charging for allowing applicants to inspect information in situ and that a charge was only permissible if copy documents were provided to the applicant or the information was accessed other than by means of in situ inspection. The First-tier Tribunal has revisited the application of the charging rule in reg 8 EIR, again in the context of property search information, in Leeds City Council v IC & APPS Claimants (EA/2012/0020-21) (judgment of 22 March 2013).

The requestors had requested all the information the Council held which would enable them to complete and answer the questions in the relevant property search form issued by the Law Society (the CON29R form). Some of this information was made available by enabling free public inspection, but not all of it. The Council charged, under reg 8(1), the requestors £22.50 for the fulfillment of their request. This was the same sum that the Council charged for completion of the CON29R form (although the request had been for the raw data and not for the Council to complete the form itself) and the costs were calculated on the basis of staff time etc, rather than solely on the costs of disbursements (such as photocopying). The primary question for the FTT was whether the non-disbursement costs could properly be the subject of a charge under reg 8 EIR.

The FTT held that they could not. There was no authority directly on the point – Kirklees not having had to decide this issue – and the FTT had primarily to decide the issue by reference to the principles underlying the Aarhus Convention, the Directive and the EIR. It considered that the Implementation Guidance to the Convention to be of assistance because it referred only charges within the disbursement category: at [52]-[53]. As to the Directive, the FTT found the judgment of the ECJ in Case C-217/97 Commission v Germany [1999] ECR I-5087 to be helpful, finding that the meaning of the judgment was clear: “The costs that can be imposed relate to the act of supplying information in order to comply with a request, not to the act of identifying or retrieving or collating the relevant material in the first place”: at [76]. The public authority is not, following Kirklees, entitled to charge for its evaluative and collation work so that it benefits from a failure to put in place proper systems to permit EIR requests to be dealt with by free public inspection: at [78].

Unsurprisingly, given the purpose of and recitals to the Directive, the FTT accepted that any approach to the interpretation of charges must be narrow to be consistent with the aim of increasing public access to environmental information. Any interpretation which permitted charges to include more than disbursement costs would have “significant adverse consequences” to that access. A public authority may not charge “for the cost of administrative tasks or administrative acts which may include, but are not necessarily limited to, the spent by staff in locating, retrieving or redacting the information requested”: at [96]-[99].

The FTT’s conclusion on that issue resolved the appeal against the Council, but it went on to indicate its view as to the reasonableness of the charge imposed by the Council in any event. It considered that £22.50 was not a reasonable charge within the meaning of reg 8(3) EIR. In particular, the Council had automatically completed the CON29R form itself and charged the standard rate rather than answering the specific request for the raw data, as well as providing data at a charge which was already available for free. The charge was calculated by reference to matters which should not have been taken into account: “the nature of the information, the motives and assumed means of the applicants, the use to which the information would be put, and the fact that no objections had been received to the CON29R fee”: at [102](ii). Various of the other factors the FTT considered at [102] may be of assistance in other disputes over the reasonableness of the charge, although if the charge remains limited to disbursements such challenges may be relatively rare. The Council was also criticised for a failure to comply with reg 8(8) in that it had not published a schedule of charges, or the basis for their calculation, which could be scrutinised for fairness and reasonableness and as a result lost the entitlement to levy a charge under reg 8(1): at [118]-[119].

The case provides some helpful clarity to an area of some practical importance to public authorities, and is of considerable utility to those requesting environmental information. It remains to be seen whether it triggers a rash of complaints to the Commissioner about the reasonableness of the copying and postage charges levied under reg 8(1) (although they must, of course, be published in advance under reg 8(8)), but there is no doubt that the judgment in Leeds should prompt all public authorities to examine their information systems and charging structures to ensure that they are genuinely restricting themselves to charging for disbursements.

Anya Proops appeared for the Information Commissioner.

Christopher Knight