A recent judgement by the Court of Justice of the European Union (CJEU) has clarified what overheads public authorities can charge for in the supply of environmental information under the Environmental Information Regulations 2004 (EIR). This legislation is often used by search companies to overcome any restrictions to data imposed by the councils.
The questions were referred to the CJEU by the Upper Tribunal in the English courts following an appeal to a decision made by the Information Commissioner (ICO) against charges imposed by East Sussex Council for a request to information from a search company – PSG. The ICO had ruled that the charges were not compatible with EIR.
This judgement has caused much debate and speculation as to its possible impact on charges imposed by councils for EIR requests, with some saying it will increase data costs whilst others saying it will dramatically reduce them.
We ask industry specialists for their views…
Stephen Murray, Director of PSG Connect Ltd and Council of Property Search Organisations (CoPSO) Executive Member, comments:
“It was not disputed, and acknowledged some time ago, that councils could make a reasonable charge for “supply” under EIR [Environmental Information Regulations]. What the Judgment clarifies (and the point at issue) is that councils cannot charge overheads in maintaining the data/registers or other costs.
“PSG is encouraged by the judgement…Whilst we need to wait for the First-tier Tribunal in the UK courts for a determination of facts, we hope the court will quickly give direction to all the parties. We would now expect East Sussex council to withdraw its appeal.
“The Judgement unambiguously states that charges cannot be imposed for the costs or overheads of maintaining a data base. In addition we are also encouraged by the statement ‘…that any interpretation of the expression ‘reasonable amount’ (in relation to supply only) that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information must be rejected’ – further clarification and testing of this point may be necessary.
“Many local authorities have embraced not only the letter but the spirit of the [EIR] and they should be applauded for doing so. However, there remains a number that abuse their position as custodians of public information to the detriment of the public, by restricting access and making unreasonable and unlawful charges.
“Point 34 in the Judgement emphasises that ‘member states are obliged to establish and maintain registers…for examination free of charge’, this should also be a warning to those councils who continue to deny access in situ and seek to work round the law to benefit their own commercial activities.
“PSG continues to work closely with CoPSO and our colleagues in the industry and is supporting CoPSO in producing a scoring matrix to highlight the best and worst practices of local authorities in terms of access to all property information…
“We think the judgement is reasonable and we feel vindicated in referring the matter to the Information Commissioner. It was the ICO’s [Information Commissioner’s Office] decision that East Sussex disagreed with. As always it is down to how these things are interpreted in practice. It is the spirit of the EIR that is most important. If councils acted in the spirit of these regulations then these sorts of cases and the costs associated with them would be unnecessary. We have been successfully challenging restrictions of access and charging for over 15 years and I suspect we will continue for another 15 years.”
Craig Lamb, CEO of The Association of Independent Personal Search Agents (IPSA) comments:
“IPSA welcomes the CJEU continued resistance to this recent attempt by local authorities to include all manner of overheads in charges for environmental information. However, it is disappointed by UK government and ICO support for authorities charging for ‘researching and locating’ such information. The EIR 2004 obliged Authorities to organise, digitise and disseminate environmental information. Authorities should not be compensated for their failure to fulfil such statutory obligations.
“This position comes into even sharper focus when it now seems apparent that authorities are running two sets of environmental information: one that is digitised for internal use only and one that is not – for everyone else.
“The ICO position is particularly surprising, given its evidence to the House of Commons Justice Committee in connection with Authorities wanting to charge for requests for information under the Freedom of Information Act; here it said:
“‘It is a bit rich to have public authorities saying, “We are assailed by unreasonable freedom of information requests”, when they do not have an adequate publication scheme, they have not got their act together in terms of records management and have a rotten website and so on.'”
Christian Lister, Chairman of the IPSA comments:
“…I think any suggestion to insure CON29 questions on an unobtainable basis would be a problem for the industry and the conveyancers. The end clients need to know upfront if any issues effect the property and further insurance doesn’t deliver that.
“I truly believe that it’s reputational to both the search provider and the law firm to provide robust advice backed by robust information. Conveyancers should be wary of cheap reports and should ask the search suppliers why they can produce the reports for such little cost, as the old saying goes; good and cheap won’t be fast, fast and good won’t be cheap, cheap and fast won’t be good.”
Lee Richards, Operations Director of Conveyancing Data Services (CDS) comments:
“We at Conveyancing Data Services view this outcome as a positive one for search companies. We will have to wait and see the directions the Upper Tribunal give on this ruling for confirmation but this judgement has clarified that local authorities can only charge for supplying data and not the maintenance of it, and it has reiterated the requirement for all local authorities to provide facilities for us to examine the registers for free, which is our preferred method for compiling a search.”
Rob Gurney, Head of Legal Practice at myhomemove, comments:
“Although the Court of Justice recently ruled that establishing and maintaining access to data must remain free, the decision also ruled that local authorities had the right to charge a reasonable fee for supplying it (e.g. copying, printing costs etc.) – between £1 and £4.50.
“If local authorities do decide to charge a fee for the provision of the data, the number of people who choose to use a personal search company could increase, as they already obtain and supply the information themselves, meaning there is no additional cost to the consumer.”
