ICO revises guidance on charging and access to environmental information

The Information Commissioner’s Office has issued two revised pieces of guidance on how much public authorities can charge for access to environmental information.

Senior policy officer Thomas Oppé said the ICO’s charging for environmental information and property searches and the EIR guidance should both be key reading for authorities handling significant numbers of EIR requests.

He said: “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.”

Oppé argued that much environmental information held by authorities would 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,” he said.

“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.”

The ICO has also revised its specific guidance around property searches, “as this prompts many enquiries” to the regulator.

He said the ICO’s view remained that although the information used to answer the CON29 form was likely to be considered environmental information under the regulations, the EIR charging provisions would not apply when the local authority completed the form and guaranteed the accuracy of the information. This was because authorities were 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,” Oppé suggested.

“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.”

He added that the amount charged could cover costs for staff time locating information or preparing information for inspection, but it should not 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,” Oppé said.

He added, though, that it needed to be borne in mind that the situation around charging might be reviewed in the future.

This was because a First-tier Tribunal case had been referred in February this year to the Court of Justice of the European Union. A decision in this case is expected “sometime next year”.

See also: Searching for an answer – 11KBW’s Robin Hopkins on the CJEU referral