Council loses appeal to tribunal over EIR and charging for property searches

A council has failed to overturn a decision by the Information Commissioner that it was not entitled to impose a £22.50 charge for making certain requested environmental information available to applicants.

In Leeds City Council v IC & APPS Claimants EA/2012/0020-21 the local authority had received requests for information required by the applicants so that they could complete the standard property search form CON29R for two addresses.

The local authority agreed to make part of the requested information available free of charge, by means of enabling public inspection.

Leeds considered that access to the remaining, disputed information could not be permitted by means of inspection – in particular because of the manner in which it was held.

The council proposed to identify, collect and supply answers to the applicants’ questions by way of a completed CON29R and to charge a £22.50 fee. This was the fee levied for completion of a full CON29R.

Leeds argued that it was entitled to impose the charge in each case under regulation 8(1) of the Environmental Information Regulations.

The appellants refused to pay, arguing that the council was required to make all the information available, free of charge, by way of inspection. They also argued that if the information could not be made available for inspection, due to the way it was held, the council should make it available without levying the £22.50 charge.

The dispute was referred to the Information Commissioner, who agreed with Leeds that it would be impractical in this case to allow the applicants to inspect the requested information in the format in which it was held. He ruled that the council could rely on regulation 6(1)(a) to provide information in a format other than inspection.

However, the Information Commissioner also concluded that Leeds had breached regulation 8(3) EIR by levying an unreasonable charge. He ordered Leeds to provide the information to the applicants, on payment of a charge only for the costs of disbursements incurred in complying with the request, provided that it had already published these charges in accordance with regulation 8(8).

Leeds appealed to the First-tier Tribunal over the conclusion that the charge was not a lawful charge for the purposes of regulation 8(1).

However, the FTT ruled in favour of the APPS Claimants and the Information Commissioner.

It said: “The purpose of the Directive is to increase public access to environmental information and to make available and disseminate environmental information to the general public ‘to the widest extent possible’.

“It follows that any approach to the interpretation of charges in respect of ‘supplying’ or ‘producing’ or ‘making available’ must be narrow in order to be consistent with these aims.”

The Tribunal said it agreed with the Commissioner and the APPS Claimants that, having regard to the provisions and underlying aims of the legislation, the cost of ‘making available’ environmental information “should be construed narrowly so as to apply only to the cost associated with the process of supplying (i.e. transferring) the information to an applicant once the requested information has been located, retrieved and put in disclosable form”.

Any other interpretation would have significant adverse consequences to those wishing to access environmental information, it added.

The tribunal continued: “Where environmental information is not available for inspection, public authorities are not entitled to pass on to an applicant the costs associated with retrieving the information and putting it in an inspectable form.

“Public authorities may make charges for providing or supplying the information to the applicant, i.e. the actual transfer disbursement cost. For avoidance of doubt, this means that they cannot charge for the cost of administrative tasks or administrative acts which may include, but are not necessarily limited to, the time spent by staff in locating, retrieving or redacting the information requested.”

The FTT said that any service which is offered by a public authority involving the supply of information which has been checked and verified by its staff (such as the CON29R property search report in this case), and the charges levied by it for such a service, “stands separate” from its obligations under public access regimes such as the FOIA and EIR and the limited charges that may be levied under those regimes.

The decision on this ground was enough to dispose of the council’s appeal. However, the Tribunal did express the view that the charge of £22.50 was not a reasonable charge.

For more information on this last point and the case in general, see: Charges under Reg 8 EIR – a power cut for local authorities