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Advocate-General gives opinion on lawfulness of charging for CON29 property information

In Case C71/14 East Sussex County Council v Information Commissioner Advocate-General Sharpston today gave her opinion.

The case concerns the ability under Directive 2003/4, the Environmental Information Directive, of local authorities to charge for the supply of information relevant to a property purchase via CON29 searches.

The case was referred by the First-tier Tribunal (Information Rights). It asked the following questions: 

‘(1) What is the meaning to be attributed to Article 5(2) of Directive 2003/4 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 Articles 5(2) and 6 of [Directive 2003/4] 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 Advocate-General proposes these answers: 

"– ‘Supplying any environmental information’ in Article 5(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC must be interpreted to mean providing access upon request by giving such information to an applicant in the format that he specified and in circumstances other than those covered by Article 5(1). Article 5(2) covers the circumstance where the information is given in a manner that enables the applicant to consult and use it in a place and at a time of his choosing and thus independently of where and how that information is held and otherwise made available through other means of access.

– Article 5(2) of Directive 2003/4 does not authorise a public authority to recover, through a charge for supplying information, all or part of the costs of establishing and maintaining a database in which it has organised the environmental information it holds and which it uses to answer requests for information of the type listed in a questionnaire such as that at issue in the main proceedings.

– A charge which does not exceed a reasonable amount within the meaning of Article 5(2) of Directive 2003/4 is a charge which: (i) is set on the basis of objective factors that are known and capable of review by a third party; (ii) is calculated regardless of who is asking for the information and for what purpose; (iii) is set at a level that guarantees the objectives of the right of access to environmental information upon request and thus does not dissuade people from seeking access or restrict their right of access; and (iv) is no greater than an amount that is appropriate to the reason why Member States are allowed to make this charge (that is, that a member of the public has made a request for the supply of environmental information) and directly correlated to the act of supplying that information.

– In particular, a charge of a ‘reasonable amount’ under Article 5(2) of Directive 2003/4 is to be based on the costs actually incurred in connection with the act of supplying environmental information in response to a specific request. That will include the costs of staff time spent on searching for and producing the information requested and the cost of producing it in the form requested (which may vary). However, it is not permissible for such a charge also to seek to recover overheads such as heating, lighting or internal services. Whilst part of such overheads might indeed be attributable to the process of putting in place the conditions that enable an authority to give access to environmental information upon request, they (like the costs of maintaining and giving access to registers and lists of environmental information) are not incurred solely in connection with the supply of information in response to a specific request.

– Article 5(2) of Directive 2003/4 requires public authorities to ensure that their charges do not exceed a reasonable amount, judged by the yardstick of what a ‘reasonable amount’ means objectively under EU law. That does not, as such, preclude a rule of national law according to which a public authority must satisfy itself that a charge levied meets that standard. This step is prior to, and separate from, the administrative and judicial review required by (respectively) Article 6(1) and (2) of Directive 2003/4.

– Article 6(1) and (2) of Directive 2003/4 requires a Member State to ensure that there is (first) administrative and (then) judicial review of whether a public authority’s decision on what constitutes a reasonable charge is in conformity with the autonomous EU law meaning of what is ‘reasonable’ under Article 5(2) of Directive 2003/4. Thus, a Member State must guarantee that the review procedure that it provides enables the reasonableness of a particular charge levied to be measured against the standard of reasonableness for such charges laid down by EU law. It is for the competent national court to interpret national law in such a way as to provide that review." 

James Maurici QC and Sasha Blackmore acted for the United Kingdom Government which made written observations to the European Court. 

Click here for a copy of the opinion.