East Sussex County Council v Information Commission

Case C-71/14, European Court of Justice (6 October 2015)

The European Court has considered a complaint that the charges made by East Sussex County Council (‘the Council’) were not in accordance with the Environmental Information Regulations 2004 (‘the 2004 Regulations’).

Consideration was given by the ECJ of what costs public authorities can charge for in providing information under the 2004 Regulations. The information in this case was property information the type of which is commonly included in property searches obtained from local authorities in property purchases. The focus of the case was whether the costs of maintaining a database of information could be charged to the applicant. Consideration was also given to whether the reasonableness of such charges could be subject to judicial review.

Background

Article 5(2) of Directive 2003/4 (‘the Directive’) on public access to environmental information states that “Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.”

Article 6(2) states that “Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final.”

Regulation 8(3) of the 2004 Regulations states that a charge for supplying environmental information “shall not exceed an amount which the public authority is satisfied is a reasonable amount”.

The Council had dealt with a request from PSG Eastbourne for environmental information to be provided under the 2004 Regulations. PSG Eastbourne is a property search company that produces conveyancing and property reports for residential and commercial property transactions.

The Council charged £17 for providing the information which was sourced from a database that the Council maintained.

The £17 charge was based on an hourly rate which the Council had calculated based on the time spent by staff in maintaining the database and dealing with information requests.

PSG Eastbourne complained to the Information Commissioner about the charge and the Commissioner found that the charge did not comply with Regulation 8(3) of the 2004 Regulations as it comprised costs which were beyond administration costs incurred in supplying the information requested.

The Council appealed to a Tribunal and the Tribunal referred two questions to the European Court:

  1. under Article 5(2) of the Directive, can a charge of a reasonable amount for supplying information include part of the cost of maintaining a database of such information and can overhead costs of staff time be included? and
  2. is it consistent with Articles 5(2) and 6 of the Directive for a Member State to legislate that a public authority may charge an amount for providing environmental information under the 2004 Regulations which “shall 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?

Decision

The ECJ held as follows:-

  1. Article 5(2) of the Directive must be interpreted as meaning that the cost of maintaining a database can not be charged. Charges must be related to the “supplying” of information and the Directive distinguishes between “supplying” information which can be charged and allowing access to public registers or lists which must be free (Article 5(1)). The costs of staff time in responding to requests for information can be charged along with photocopying costs as they are incurred in responding to information requests and supplying the information, though they must not exceed a reasonable amount.
  2. That Article 6 must be interpreted as not preventing the possibility of limited administrative and judicial review under national legislation of decisions by public authorities in setting reasonable charges under Article 5(2).

Comments

The ECJ has left little doubt as to what the Directive intends charges for environmental information to cover, the key message being that the costs of “supplying” the information can be charged but not the costs of maintaining registers or databases of that information.

It has also clarified that the reasonableness of such charges, while at a public authority’s discretion under the 2004 Regulations, is open to judicial review.

This decision obviously clarifies for public authorities what costs can be charged to an applicant in responding to requests for environmental information, which should reduce the risk of future challenge. There will inevitably be a cost implication to public authorities of this decision, as it is clear that the cost of maintaining registers and databases must be met from other resources.

From an applicant’s point of view this clarification makes the fees for environmental information more transparent and easier to anticipate while highlighting a route for review should there be a question around the interpretation of ‘reasonableness’.

This clarification/guidance on interpretation of the Directive which the ECJ has provided will be helpful in interpreting the Environmental Information (Scotland) Regulations 2004.  While both the English and Scottish Regulations implement the Directive there is a slight difference in how the charging clause is worded with the Scottish Regulations restricting charges to a "reasonable amount" which "shall not exceed the costs to the authority of producing the information requested".