The Environmental Information Regulations 2004 (“EIR”) give rights of public access to information held by public authorities. Regulation 8 of the EIR provides that where a public authority makes environmental information available in accordance with regulation 5(1) the authority may charge the applicant for making the information available. Following an appeal to the First Tier Tribunal in the case of East Sussex County Council v ICO & Property Search Group (EA/2013/0037), two questions were referred to the Court of Justice of the European Union (“CJEU”) concerning what a public authority may charge for supplying environmental information – in this case charges for property searches – and, in particular, what constitutes a “reasonable amount”.

The referral was set against a background of East Sussex levying a fixed charge for providing information in relation to property searches, such charge having been calculated on the basis of disbursement costs, staff time, overheads, and the maintenance of information systems (which, it should be noted were also used for the retention and provision of other – non property search-related – information).

The two questions that were referred to the CJEU were as follows:

“(1) What is the meaning to be attributed to Article 5(2) of Directive 2003/4 and in particular can a charge of a reasonable amount for supplying a particular type of environmental information include:

  1. Part of the cost of maintaining a database used by the public authority to answer requests for information of that type;
  2. Overhead costs attributable to staff time properly taken into account in fixing the charge?

(2) Is it consistent with Articles 5(2) and 6 of Directive 2003/4 for a Member State to provide in its regulations that a public authority may charge an amount for supplying environmental information which does ‘…not exceed an amount which the public authority is satisfied is a reasonable amount’ if the decision of the public authority as to what is a ‘reasonable amount’ is subject to administrative and judicial review as provided under English law?”

As to the first question, the CJEU considered that:

  • In principle, it is only the costs that do not arise from the establishment and maintenance of those registers, lists and facilities for examination that are attributable to the ‘supplying’ of environmental information and are costs for which the national authorities are entitled to charge under Article 5(2) of Directive 2003/4 (at [36]);
  • The costs of maintaining a database used by the public authority for answering requests for environmental information may not be taken into consideration when calculating a charge for ‘supplying’ environmental information (at [37]);
  • The costs of ‘supplying’ environmental information which may be charged under Article 5(2) of Directive 2003/4 encompass 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]);
  • Any interpretation of the expression ‘reasonable amount’ that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information must be rejected (at [42]);
  • An assessment of ‘deterrent effect’ cannot relate solely to the requester’s economic situation, but must also be based on an objective analysis of the charge; the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable (at [43]).

In  light  of  the  above,  the  CJEU  answered  the  first question thus (at [45]):

“Article 5(2) of Directive 2003/4 must be interpreted as meaning that the charge for supplying a particular type of environmental information may not include any part of the cost of maintaining a database, such as that at issue in the main proceedings, used for that purpose by the public authority, but may include the overheads attributable to the time spent by the staff of the public authority on answering individual requests for information, properly taken into account in fixing the charge, provided that the total amount of the charge does not exceed a reasonable amount.”

As to the second question, the CJEU considered that:

  • In the absence of EU rules governing the matter, it is for the legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law (at [52]);
  • Such rules must respect the principle of equivalence and effectiveness (also at [52]);
  • The wording of regulation 8(3) of the EIR, interpreted in accordance with the principles of English administrative law, limits the extent of administrative and judicial review to the question whether the decision taken by the public authority concerned was irrational, illegal or unfair, with very limited scope for reviewing the relevant factual considerations reached by that authority (at [57]);
  • Such judicial review – that is limited as regards the assessment of certain questions of fact – is compatible with EU law, on condition that it enables the court or tribunal hearing an application for annulment of such a decision to apply effectively the relevant principles and rules of EU law when reviewing the lawfulness of the decision (at [58]).

In light of the above, the CJEU answered the second question thus (at [61]):

“Article 6 of Directive 2003/4 must be interpreted as not precluding national legislation under which the reasonableness of a charge for supplying a particular type of environmental information is the subject only of limited administrative and judicial review as provided for in English law, provided that the review is carried out on the basis of objective elements and, in accordance with the principles of equivalence and effectiveness, relates to the question whether the public authority making the charge has complied with the conditions in Article 5(2) of that directive, which is for the referring tribunal to ascertain.”

Comment

It has long been recognised that local authorities are entitled to charge for the supply of environmental information under the EIR provided,  of course, that charge is reasonable and – further – such  charge does not have a deterrent effect. The East Sussex case confirmed that an assessment of ‘deterrent effect’ involves both subjective and objective analysis in order to retain appropriate checks and balances. The CJEU also provided clear guidance as to what such charges may be comprised of and, in particular, that charges cannot be imposed for the costs or overheads of maintaining a database.

However, and whilst the clarity provided in relation to the first question is to be welcomed, to some extent the CJEU did little more than to state the obvious in relation to the second question. It remains to be seen whether a similar referral as to the nature of the review process under the EIR – and regulation 8(3) in particular – will follow in the future.