ICO clarifies rules on charging for access to environmental information

By Thomas Oppé, Senior Policy Officer, Policy Delivery.

terraced-houses

While the Environmental Information Regulations do not prompt as many enquiries to the ICO as the Freedom of Information Act, there are still parts of the regulations that require clarification and case law is still emerging.

One of the most notable is how much public authorities can charge for access to environmental information. That’s the focus for two revised pieces of guidance published today, which will be of use to any public authority that handles EIR requests.

Looking at our guidance in numbers provides a good overview:

OneThere is one piece of legislation, the Environmental Information Regulations 2004 (EIR), that allows public authorities to charge for making environmental information available

TwoThere are two types of activity public authorities can charge for: staff time spent locating, retrieving and extracting the information, and costs incurred printing or copying the information and sending it to the applicant.

ThreeThere are three costs they can’t charge for: the costs of maintaining a register of information or a database, overhead costs (eg wider staff overheads) or staff time spent redacting information.

1010 pence, the indication given by an Information Tribunal as to what an authority may charge for photocopying.


2525 pounds, the hourly rate stated in the Freedom of Information Act, which we see as a good starting point for calculating the value of staff time.


27There are 27 pages of guidance across the ICO’s charging for environmental information and property searches and the EIR guidance, both of which should be key reading for authorities handling significant numbers of EIR requests.

The key factor is that any charge must be a reasonable amount. The overall aim of the EIR is to ensure that the public have comprehensive and free access to environmental information. Public authorities should be proactive in ensuring that important environmental information is readily available and published via their website, and the cost of poor record keeping should not be passed on to a requestor.

It’s important to remember that much environmental information held by authorities will already be well organised and accessible, particularly information related to property searches. In these situations, the amount a local authority could charge for staff time to locate the information would be nominal. Realistically, we’d expect local authorities to only be charging in exceptional or very burdensome cases, and we will be expecting them to be able to justify why an amount is reasonable in each request.

We’ve also revised our specific guidance around property searches, key information needed when buying a house, as this prompts many enquiries to the ICO.

Most property searches are based around a standard ‘CON29 form’, which covers the majority of information most homebuyers require. Our view remains that although the information used to answer the form is likely to be considered environmental information under the regulations, the EIR charging provisions will not apply when the local authority completes the form and guarantees the accuracy of the information. This is because authorities are going over and above simply providing access to information.

Crucially, though, we feel differently about the underlying environmental information sometimes asked for instead of asking the public authority to complete the CON29 form. This is covered by the EIR charging provisions, and that will impact how much a local authority can charge. And of course the EIR covers any requests for environmental information, not just those made in the context of property searches.

The amount that can be charged follows the same rules we’ve already talked about: it can cover costs for staff time locating information or preparing information for inspection, but it shouldn’t cover maintaining a database of this type of information in the first place. Again, remember the aim of EIR is to ensure comprehensive and free access to environmental information.

One final thing to bear in mind is that the situation around charging may be reviewed in the future. As the guidance explains, these issues are currently the subject of a First-tier Tribunal case which has been referred to the Court of Justice of the European Union. The new guidance sets out our position in light of the current status of the case, but we are still waiting for the court to make its decision sometime next year.

Last updated 25/06/2014 14:50

tom-o-blogpicThomas Oppé is a Senior Policy Officer at the ICO. He has contributed to guidance on many different aspects on data protection compliance, including the ICO code of practice on anonymisation.

Thomas also has a lead role in the promotion of Privacy Impact Assessments and has worked with several organisations in their implementation of PIAs.

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One Response to ICO clarifies rules on charging for access to environmental information

  1. Nick says:

    The problem here is that public authorities cannot handle competition and instead of improving their own performance they usually seek to disrupt private sector performance as in private searches. The EIR states that access should be provided as soon as possible but at the latest within twenty working days. Do they ever provide access as soon as possible or is it closer to twenty days? Do they provide access to the records? No. They produce print outs which allows them to create artificial delays. You can speed this up but you have to pay for the information. Some create a PDF and email it to a computer in a public area for viewing. Will they email this to you instead? No. They will insist on you driving to them to view the PDF. For example, Conwy in North Wales. If you want to find out the planning history on a property you have to email or write the address and send it to the council together with a plan of the property. You then have to drive to the council office where they will hand you a piece of paper with the planning numbers on. You cannot keep this piece of paper. Oh no. You have to copy it on to your own piece of paper and give them back the original which they then throw in to a bin. You then have to send the planning numbers back to them and they will tell you the planning applications relating to those numbers. I really am not kidding. Any council seriously wanting to serve the public or reduce pollution would blush at this farce.
    Joe Public.

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