By Thomas Oppé, Senior Policy Officer, Policy Delivery.
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:
There is one piece of legislation, the Environmental Information Regulations 2004 (EIR), that allows public authorities to charge for making environmental information available
There 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.
There 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.
10 pence, the indication given by an Information Tribunal as to what an authority may charge for photocopying.
25 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.
There 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
|Thomas 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.