Charging Ahead under the EIR

October 7th, 2015

It is difficult to imagine what could possibly have happened yesterday to cause the CJEU’s judgment in Case C-71/14 East Sussex County Council v Information Commissioner (judgment of 6 October 2015) to slip beneath the waves, but for those who spent the day reading, talking and thinking about Safe Harbo(u)rs (presumably something to do with shipping?) East Sussex represents a comforting return to normality, if not mundanity, where the CJEU is asked straightforward questions and it doesn’t quite answer them.

The ability to impose charges for the provision of property search information is an important financial issue for many local authorities. Historically it had been thought by many that the imposition of such charges was governed by the Local Authorities (England) (Charges for Property Searches) Regulations 2008 (“CPSR”), which allow local authorities to recover all the costs of making such information available (including staff costs, overhead costs and the costs of maintaining relevant information systems). However, in recent years there has been an increasing awareness of the fact that requests for property search information to a large extent amount to requests for access to environmental information, such that they call for an application of the charging regime provided for in reg 8 of the Environmental Information Regulations 2004. The CPSR itself specifically provides that it does not apply to the provision of any information which is governed by other statutory charging regimes. Accordingly, it would seem that the CPSR is inapplicable in respect of requests for property search information insofar as those requests are made under the EIR.

Regulation 8 EIR – implementing Article 5 of Directive 2003/4/EC – 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 examining the requested information in situ. In East Sussex the applicant requested answers to questions in the standard property search form issued by the Law Society, the CON29R form. The Council imposed a fixed charge for providing this information, the fixed charge having been calculated on the basis of the approach provided for in the CPSR (i.e. was a charge which was intended to produce a cost neutral result for the Council). The charge itself factored in not only disbursement costs, but also staff time, a portion of the Council’s overhead costs, office costs and a portion of the costs of maintaining the information systems from which the relevant information is derived. Was this lawful? And also, was it permissible to approach the question of whether the costs were reasonable on a judicial review-type basis (which follows from reg 8(3) EIR which frames the question in terms whether the “the public authority is satisfied” that the charge was reasonable)?

To be fair to the CJEU, it provided a relatively clear answer on the first issue of what sort of costs can be recouped through charging. It emphasised that the charges must relate to the supply of the information, and that supply had to be something over and above the costs of establishing and maintaining the register/list of environmental information which had to be able to be inspected in situ for free. Any cost which relates to maintaining that database cannot be attributed to the supply: at [33]-[38]. The sort of thing which can be charged for encompasses “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 includes the time spent on searching for the information and putting it in the form required. Such costs do not arise from the establishment and maintenance of registers and lists of environmental information held and facilities for the examination of that information“: at [39]. Staff costs/overheads which are actually attributable to the supply (as opposed to database maintenance) are recoverable in the application of ordinary accounting principles: at [41].

Any charge must still not exceed a reasonable amount, not least because there should not be a deterrent effect on those wishing to exercise their right of access to environmental information, applying Case C-217/97 Commission v Germany [1999] ECR I-5087. In assessing whether such an effect would result, and the charge is unreasonable, the Tribunal must consider both an objective analysis of the situation and the subjective financial position of the requestor: at [43]. The point of this is, of course, to ensure that a charge is not waved through simply because the requestor happens to be rich or well-funded when it would plainly deter others, and nor should the Court be taken to be approving requestor-specific variable charges. Although the Court did not finally determine the matter, it gave a clear indication at [44] that costs of £1-£4.50 were unlikely to fall foul of the reasonableness requirement, particularly given a reduction would be required to ensure the charges complied with the Court’s interpretation of what charges could be recovered in the first place.

More abstractly, the CJEU also considered the nature of the review process applied under reg 8(3), which has been interpreted to be restricted to judicial review principles. This the Court does not quite answer. It reiterates the unsurprising principle that the review must comply with the principles of equivalence and effectiveness, that JR which does not involve a full factual assessment is not necessarily problematic for EU law (at [58]; which is entirely consistent with the flexible nature of English JR principles in any event: R (A) v Croydon LBC [2009] UKSC 8; [2009] 1 WLR 2557), but that the assessment of whether charges are actually for supplying and whether they are reasonable are questions of EU law which must be capable of review on the basis of objective elements: at [58]-[59].

No need then to rip up reg 8 EIR, but some finessing on the part of local authorities will probably be needed as to their charging schemes, and Tribunals will need to be willing to engage a little more closely with those charging decisions on appeal. As Radiohead would say, “no surprises”. And they would. Panopticon has it on good (/made up) authority that Radiohead are very interested in charging decisions, lobbying strongly for a ‘pay what you want’ approach not only to albums but also to environmental information. Maybe next time lads.

Anya Proops appeared for the ICO.

Christopher Knight

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