Searching questions in the CJEU: the East Sussex County Council case

When local authorities provide property search information, can they charge for doing so? On what legal basis? How should such charges be calculated?

A Panopticon post from February 2014 by Robin Hopkins explains the background. To summarise, at one time it was widely believed that the Local Authorities (England)(Charges for Property Searches) Regulations 2008 (“CPSR”) applied, allowing local authorities to charge by reference to staff costs, overheads, and the cost of maintaining information systems.   More recently, it has been recognised that such requests will largely fall within the Environmental Information Regulations 2004 (“EIR”). EIR regulation 8 allows reasonable charges to be imposed for making environmental information available, save that no charge may be imposed for permitting access to public registers or for examining the requested information in situ.

In East Sussex County Council v Information Commissioner and others the applicant requested answers to the questions in CON29, the Law Society’s standard property search form. The Council imposed a fixed charge (based on the CPSR approach) that took account of disbursements, staff time, overheads, office costs, and information system costs. The First Tier Tribunal had to determine whether the charge was permissible under EIR regulation 8. It referred a number of questions to the CJEU for a preliminary ruling on the construction of Directive 2003/4 (“the Directive), to which the EIR give effect.

The case has now been heard in the CJEU, and Advocate General Sharpston issued her opinion on 16th April 2015.

The case turns on the construction of Articles 5 and 6 of the Directive. Article 5(1) requires that access to any public registers or lists of environmental information, and examination in situ of such information, shall be free of charge. Article 5(2) then allows public authorities to charge for supplying environmental information on request, provided that the charge does not exceed a reasonable amount. By Article 6, Member States must provide for administrative and judicial review of public authorities’ decisions relating to access to environmental information.

The first question addressed is what is meant by “supplying” environmental information in Article 5(2). Advocate General Sharpston states that this means providing access on request, by giving such information to an applicant in the format that he specifies, in circumstances other than those set out in Article 5(1).

What constitutes a “reasonable amount” within Article 5(2)? Advocate General Sharpston refers to this term as having an autonomous EU law meaning. She sets out, in some detail, what this means in practice. She identifies four requirements. First, a reasonable charge is one that is set on the basis of objective factors that are known and capable of review by a third party. Secondly, the charge must be calculated regardless of the requester’s identity or purpose. Thirdly, the charge must be set at a level that does not dissuade people from seeking access or restrict their right of access. Fourthly, the charge must be appropriate to the reason why Member States are allowed to make this charge (that is, that a member of the public has made a request for the supply of environmental information), and must be directly correlated to the act of supplying the information.

What can such a charge include? It must be based on the costs actually incurred in connection with the act of supplying information in response to a specific request. Hence the charge cannot include database costs, or overheads such as heating, lighting, or internal services. However it can include the costs of staff time spent on searching for and producing the information requested, and the cost of producing it in the form requested.

It is permissible for national law to provide that a public authority must satisfy itself that a charge levied meets the reasonableness standard. However, Article 6(1) and (2) of Directive 2003/4 requires a Member State to ensure that there can be both administrative and judicial review of whether the public authority’s decision conforms with the autonomous EU law meaning of what is reasonable.

While the issue of search costs for property search information may not set the pulse racing, it is of real importance both for companies carrying on business in this area and for cash-strapped local authorities keen to recover whatever costs they can. It remains to be seen, of course, whether the CJEU will adopt the Advocate General’s opinion.

11KBW’s Anya Proops acted for the Information Commissioner in the proceedings before the CJEU.