Case C-71/14, East Sussex County Council – the price of environmental information [judgment 2015, ECLI:EU:C:2015:656]

Before buying a home, a prospective purchaser may might want to know things like whether the local authority intends to knock down that property to make way for a road or a railway. Such information is ‘environmental information’, and some authorities charge for telling people and companies about what they have in mind. Admittedly, the EU’s ‘public access to environmental information’ Directive 2003/4/EC does allow a charge to be made but it ‘… shall not exceed a reasonable amount’. The problem here is that a company is objecting to how a local authority in England and Wales is setting its fees for performing these environmental information searches.

Facts
Local authorities in England and Wales create and maintain registers of Local Land Charges. Before buying a property, purchasers find it helpful to search the Local Land Charge register because it will contain important information about how a particular property may or may not be used.

Regrettably, the Local Land Charges Register does not contain all of the important pieces of information that a purchaser will also want to know about. For example, the Register does not show anything about proposed road schemes that are close to the property. It does not even show if the property is subject to planning enforcement proceedings.

Given the importance of such environmental information, a purchaser’s intermediary will need to make ‘additional enquiries’ to the local authority. The routine nature of supplying this sort of information meant that a local authority would use set-forms known as ‘additional enquiries’ CON29R (for recommended additional enquiries), and CON29O (for extra optional additional enquiries). Whether a person has to pay for CON 29 ‘additional enquiries’ is up to the local authority.

After 1999, CON29 ‘additional enquiries’ information could be obtained another way. It was possible to gather this information from private companies. These companies could send their staff down to local government offices to conduct ‘personal searches’ of the register and build up their own databases. These ‘personal search companies’ would then sell the results of their search to a prospective property purchaser or conveyancer.

One such ‘personal search company’ is PSG Eastbourne. In 2011, it made a CON29 information request to a branch of a local authority. More specifically, the request was sent to East Sussex County Council’s Highway Land Information Team. The information search was performed and the Council charged its normal flat-rate fee of £17. PSG Eastbourne paid the fee. However, it was unhappy about doing so.

Indeed, PSG Eastbourne was so unhappy at paying the fee that it put in a complaint to the UK’s Information Commissioner. The Information Commissioner subsequently decided that East Sussex County Council’s charge was indeed incorrect. For whereas the Council had calculated its charge on the basis of recovering its costs, the Information Commissioner thought that a reasonable cost entailed reimbursement only for the costs of disbursements – in other words, the fee should be determined on the basis of making the photocopies and posting the information.

The Council appealed the Information Commissioner’s decision up to the First-tier Tribunal (Information Rights).

At the First-tier Tribunal
The Tribunal granted leave for other parties to join the litigation, including the Property Search Group (a franchised network of similar companies to which PSG Eastbourne belongs), and the Local Government Association.

Before the hearing took place, the Information Commissioner conceded that in light of legal history, a reasonable fee should not be determined on the basis of the costs of disbursements; the fee could include costs attributable to staff time spent on dealing with a request for information.

However, a couple of issues remained unresolved as to how a reasonable fee should be determined, and who should be able to determine or check it.

The First-tier Tribunal set out the relevant provisions of the EU’s ‘public access to environmental information’ Directive 2003/4/EC.

Article 5 on ‘Charges’ provides:

1. Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.
2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.
3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.

And the First-tier Tribunal also recalled the relevant case law of the CJEU. In Case C-217/97, Commission v. Germany, the CJEU had reasoned:

46 In the absence of more details in the directive itself, what constitutes ‘a reasonable cost’ must be determined in the light of the purpose of the directive.

47 As the Advocate General observed in paragraph 23 of his Opinion, the purpose of the directive is to confer a right on individuals which assures them freedom of access to information on the environment and to make information effectively available to any natural or legal person at his request, without his or her having to prove an interest. Consequently, any interpretation of what constitutes ‘a reasonable cost’ for the purposes of Article 5 of the directive which may have the result that persons are dissuaded from seeking to obtain information or which may restrict their right of access to information must be rejected.

48 Consequently, the term ‘reasonable’ for the purposes of Article 5 of the directive must be understood as meaning that it does not authorise Member States to pass on to those seeking information the entire amount of the costs, in particular indirect ones, actually incurred for the State budget in conducting an information search.
…
57 It should be noted, first, that Article 5 of the directive permits Member States to make a charge for ‘supplying’ information and not for the administrative tasks connected with a request for information.
…
59 Furthermore, the charge made where a request for information is refused cannot be described as reasonable, since in such a case no information has in fact been supplied within the meaning of Article 5 of the directive.

The First-tier Tribunal acknowledged that the CJEU’s judgment in C-217/97, Commission v. Germany was based on an earlier version of the Directive that did not have the benefit of Recital 18. The Recital states:

Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. Instances where advance payment will be required should be limited. In particular cases, where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market-based charge is considered to be reasonable; an advance payment may be required. A schedule of charges should be published and made available to applicants together with information on the circumstances in which a charge may be levied or waived.

With this EU law framework in mind, was the Council’s charge of £17 reasonable? The Council thought it was. But that was denied by the Information Commissioner and the Property Search Group. They submitted that on the basis of Article 5(2) of the Directive, it was wrong in principle for the Council to have included 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 such as heating, lighting, staff training costs, and building rent. In light of the wording of Article 5(2) and paras 48 and 57 of Commission v Germany, they submitted that the Council’s charge could only be made for supplying information, and indirect costs should not be passed on to people seeking information.

The First-tier Tribunal was minded to find: that the Council was wrong in so far as the charge also looked at the full annual staff costs of maintaining the team’s database – after all, the database was maintained for the purposes of other work performed by the Council’s team, and the database was also used by other parts of the Council. Thus, only a proportion of the cost of maintaining the database should have been used to calculate the fee for a CON29 request.

Nevertheless, the Tribunal also found that the Council had not included any element of surplus or profit in the charges, and that they represented a reasonable estimate of the actual cost to the Council of responding to CON29 requests.

But that was not the only issue to perplex the parties and the Tribunal. That is say, English statutory law allowed local authorities to set their fees providing that the amount ‘shall not exceed an amount which the public authority is satisfied is a reasonable amount ‘.

Under English public law, the authority’s decision about how high its fees were was one that could only be challenged if it could be proved that the authority had acted illegally, unreasonably, or unfairly.

Now the Information Commissioner thought that this was the wrong approach. The relevant provision of the Directive was Article 5(2). Although the provision enabled public authorities to make a charge for supplying any environmental information, it said that ‘such charge shall not exceed a reasonable amount’. The Information Commissioner interpreted this to mean that the Council’s subjective assessment was not relevant, rather the Directive required an objective basis assessment as to whether a Council’s charge was reasonable.

Questions Referred
Judge Shanks of the First-tier Tribunal (Information Rights) has asked:

(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?