Mr. Pat Swords and the Department of Environment, Community and Local Government

• Case Number: CEI/11/0007
• Decision Date: 20 February 2013
• Issuer: Department of Environment, Community and Local Government
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Pat Swords and the Department of Environment, Community and Local Government

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/11/0007

Published on 20 February 2013

1. Background
2. Scope of Review
3. Analysis and Findings
4. Conclusion
5. Decision
6. Appeal to the High Court

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Mr. Pat Swords

Public Authority: Department of Environment, Community and Local Government (the Department)

Whether the Department was justified in charging a fee for the costs involved in searching for and retrieving the information requested

Summary of Commissioner's Decision: In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the Department and found that it was not justified in charging a fee for search and retrieval costs. She annulled the Department's decision accordingly.

Background

In a request dated 8 April 2011, the appellant sought access under the AIE Regulations to the following information:

All documentation relating to 'taking account of the public participation exercise' in relation to the waste policy and preparation of the Environment (Miscellaneous Provisions) Bill 2011 [excluding the submissions themselves].

All documentation related to procedures and norms for the preparation of public documentation as part of public participation exercises.

All documentation related to procedures and norms for 'taking account of the public participation'.

On 20 April 2011, the Department wrote to the appellant in reference to his AIE request for records "relating to public participation and the development of policy and legislation". The Department explained that the search and retrieval process was estimated to cost €146.65. The estimated cost was based on seven hours of staff time at an hourly fee of €20.95 in accordance with the fee schedule published on the Department's website. The Department requested the appellant to forward a deposit of 20%, i.e. €29.33, noting that the search and retrieval process would not commence until the deposit had been received. However, the appellant was invited to review or amend his request with a view to reducing the fee.

On 22 April 2011, the appellant applied for internal review of the decision to charge a fee for search and retrieval costs. He suggested that the environmental information he had requested was subject to the dissemination requirements of Article 7 of the AIE Directive, 2003/4/EC, upon which the AIE Regulations are based.

In an internal review decision dated 20 May 2011, the Department affirmed the original decision to request a deposit of 20% of the charge of €146.65 for the estimated cost of the search and retrieval work related to the appellant's request. The appellant made an appeal to my Office against the decision of the Department on 20 May 2011.

In a letter dated 25 January 2012, Ms. Anne Garland, Investigator, informed the Department of her preliminary view on the matter. Briefly stated, Ms. Garland considered that the Department is not entitled under the AIE Regulations and Directive 2003/4/EC to include in its charges the staff time spent in searching for and retrieving the information requested. In a reply dated 17 February 2012, the Department stated that it does not agree that its proposed fee is not in compliance with the requirements of the Regulations. Having had regard to the Department's submissions, as well as to the relevant section of the Guidance Notes published by the Department, I have decided to conclude this appeal by way of a formal, binding decision.

Scope of Review

The question before me is whether it is permissible under the AIE Regulations for a public authority such as the Department to charge a fee for the costs involved in searching for and retrieving the information requested.

Analysis and Findings

I previously considered the question of search and retrieval fees under the AIE regime in Case CEI/07/0006 - Open Focus and Sligo County Council (26 May 2008). I have reconsidered the question in the context in this case, but my conclusion remains by and large the same: it is neither permissible, nor is it reasonable having regard to the Directive, for a public authority to impose search and retrieval fees for the work involved in processing an AIE request. Such work is not part of the supply of information for which it is permissible to charge a fee; nor is charging for search and retrieval compatible with the prohibition on charges for the examination in situ of information requested. Allowing for such a charge would also run contrary to the purpose of the AIE Directive and the information or records management practices that are required of public authorities under the AIE regime. In other words, it would be inconsistent with the manner in which the AIE regime is meant to operate.

Relevant Provisions and Guidance Notes

Article 15 of the Regulations provides, in pertinent part:

"(1)(a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.

(b) Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to Article 5(1)(d).

(c) Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested.

(d) Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2), for the provision of such copies.

(2) Where a public authority charges a fee pursuant to sub-article (1), it shall make available to the public a list of fees charged, information on how they are calculated and the circumstances under which they may be waived."

Article 15 is intended to give effect to Article 5 of the AIE Directive, which states: "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."

Recital (18) provides some guidance for determining what a "reasonable amount" may be: Apart from the commercial context, the rule is that "charges may not exceed the actual costs of producing the material in question". The Recital also specifies that "[i]nstances where advance payment will be required should be limited". The Guidance Notes published by the Department advise: "A 'reasonable' charge will vary depending on the volume of information to be released but could, for example, include the cost of staff or other costs connected with searching, retrieving, compiling or copying of the information."

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