Key issues on property searches and charging referred to European court

The First-tier Tribunal has asked the Court of Justice for the European Union (CJEU) for a preliminary ruling on local authorities charging under the Environmental Information Regulations for property search information.

In its reference, the Tribunal said: “There is widespread uncertainty about the extent to which local authorities can charge for supplying such information, which has given rise to many disputes between local authorities and applicants for information (in particular so called ‘personal search companies’) and to several cases in the First-tier Tribunal.”

The questions posed by the FTT (Information Rights) for the Court are:

1. What is the meaning to be attributed to Art 5(2) of Directive 2003/4/EC and in particular can a charge of a reasonable amount for supplying a particular type of environmental information include: (a) part of the cost of maintaining a database used by the public authority to answer requests for information of that type; (b) overhead costs attributable to staff time properly taken into account in fixing the charge?
2. Is it consistent with Arts 5(2) and 6 of the Directive 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?

The reference by the FTT can be viewed here.

The parties to the case are East Sussex County Council (the appellant), the Information Commissioner (first respondent), Property Search Group (second respondent) and the Local Government Association (third respondent).

PSG Eastbourne had requested that the local authority answer certain CON29 questions about a specific property. It was not in dispute that the information concerned was environmental information.

East Sussex charged the company £17 for the information, which was paid by PSG.

The company and the local authority were involved at the time in a long-running dispute over the lawfulness of the council’s charges. PSG requested that East Sussex carry out an internal review, which found that regulation 8 of the EIR entitled it to make the charge.

PSG subsequently complained to the Information Commissioner. In a decision notice issued in January 2013 he concluded that East Sussex had not dealt with a request for information in accordance with Art 8(3) of the EIR because it had calculated the charge on a ‘cost recovery' basis.

The ICO took the view that a ‘reasonable amount’ was restricted to “the disbursement costs associated with making the information available in the specified form ie postage and photocopying charges”.

East Sussex appealed the Information Commissioner’s decision notice.

The ICO maintained in its formal response to the appeal that a ‘reasonable amount’ was restricted to mere disbursements. However, the Commissioner subsequently raised two issues relevant to the reference:

1. An issue about the nature of the review that the Commissioner and the Tribunal should carry out when determining whether a particular charge exceeded a “reasonable amount”; and
2. On the assumption that the local authority was entitled to make a charge beyond mere disbursements, a general challenge to the reasonableness of the charges in this case, a matter on which the Commissioner stated that further evidence was required.

The LGA and PSG were allowed to join the proceedings to give a wider perspective.

The search company and the Information Commissioner subsequently conceded that the expression ‘reasonable amount’ in Art 5(2) of the Directive was not confined to disbursements but could include costs attributable to staff time spent on dealing with a request for information – a concession the FTT said was “clearly correct”.

The Tribunal also said there was no dispute either that it was open to a public authority to make a standard pre-fixed charge for answering specific requests for information based on average costs.

Both East Sussex and the LGA have maintained that the charges on the council’s schedule did not exceed a ‘reasonable amount’ for supplying relevant information.

However, the ICO and PSG maintained that on a proper construction of Art 5(2) it was wrong in principle to include in any charge (a) any part of the cost of maintaining a database used to answer a request for information and (b) any element for overheads.

These arguments were based on the wording of Art 5(2) and the CJEU’s statement in Commission v Germany that ‘indirect costs’ should not be passed on to those who are seeking information.

“It seems to the Tribunal that these points must be arguable and ought to be resolved by the Court before the Tribunal gives a final decision in the case: that is the purpose of question (1) for the Court,” the FTT reference said.

The Tribunal said the second question for the CJEU might not make any practical difference in this particular case but could affect the approach of the FTT and the Commissioner in future.

This issue related to the provision in the EIR – in regulation 8(3) – that the charge made by a public authority “shall not exceed an amount which the public authority is satisfied is a reasonable amount”.

The reference said: “If the italicised words are interpreted strictly under English law any challenge to a charge made by a public authority before the Commissioner or the Tribunal should only succeed if the decision of the public authority about what was a reasonable amount was itself 'unreasonable' in an administrative law sense (ie irrational, illegal or unfair), but there would be very limited scope for a challenge to any relevant factual conclusions reached by the public authority.”

East Sussex and the LGA have maintained that such an approach would be perfectly consistent with the Directive and that it provided a sufficient review for the purposes of Arts 6(1) and (2) of the Directive.

However, the ICO and PSG have argued that the italicised words were not consistent with Art 5(2) of the Directive and that any review by the Commissioner or the Tribunal should be carried out on an ‘objective basis’, the reviewing body asking itself on the evidence before it whether the charge exceeded a ‘reasonable amount’.

“Again, it seems to the Tribunal that both positions are arguable and the Tribunal therefore seeks the Court’s ruling on question (2),” the FTT said.