Wednesday, April 05, 2006

Latest Tribunal Decision

An important tribunal decision has just been published relating charging under the Enivornmental Information Regulations. The information tribunal has substituted the ICs decision notice with a new decision. The IC had not upheld the complaint about the charges being "reasonable" (S8(3) of the EIRs - different to the charging regime for FOIA).

Mr David Markinson v Information Commissioner 28th March 2006)

Substitute Decision Notice
41 The complaint of Mr Markinson was that the Council had not complied with Regulation 8(3) in that it had sought to charge:
(a) £6 for a copy of any planning/building control decision notices (a charge that was increased to £6.50 on 1 April 2005 and then reduced to 50p on 16 June 2005, both dates post-dating the date when Mr Markinson had lodged his complaint with the Commissioner); and
(b) 50p for each piece of all other A4 size copy documents.

42 The Commissioner s decision should stand on the following questions:
(a) The information in question fell to be considered under the Regulations; and
(b) The circumstances were such as to trigger the Commissioners duty to consider the matter and reach a decision.

43 The Tribunal has decided that the Council did not comply with its obligations under Part 2 of the Regulations in that, although the information was available for inspection at the Council s office free of charge, (in accordance with paragraph
8(2)(b) of the Regulations), each of the charges made by the Council for the provision of copies of the information, as set out in paragraph 41(a) and (b) above,
failed to satisfy the requirements of Regulation 8(3), for the reasons set out in paragraphs 33 and 34 above.

44 The actions that the Council is required to take, in the light of that decision, are as follows:
(a) The Council should reassess the charges that it makes for providing copies of environmental information for the purposes of the Regulations.
(b) In making that reassessment the Council should adopt as a guide price the sum of 10p per A4 sheet, as identified in the Good practice guidance on access to and charging for planning information published by the Office of the Deputy Prime Minister and as recommended by the DCA.
(c) The Council should be free to exceed that guide price figure only if it can demonstrate that there is a good reason for it to do so, and in considering whether any such reason exists the Council should:
(i) take due regard of the guidance set out in the Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004 and the Guidance to the Environmental Information Regulations 2004 , both published by DEFRA, to the effect that any charge should be at a level that does not exceed the cost of producing the copies;

disregard any costs, including staff costs, associated with the maintenance of the information in question or its identification or extraction from storage; and
(iii) disregard any factors beyond the number and size of sheets to be copied, in particular, the real or perceived significance of the content, or the effect that any charging structure may have on the Council s revenue or its staff workload.
(d) If the Council wishes to, and can, justify a higher charging rate, on the basis of the guidance set out above, then it may do so provided that there has been proper study, scrutiny, decision and authorisation for such a charge, and the process for arriving at the higher charge is published and available for scrutiny.

45 We direct that a copy of this decision, incorporating this substituted Decision Notice,be served on the Council and that it complete the process of re-assessment, and publishes details of the resulting charges, by no later than 2 May 2006

Also see original ICO Decision Case Ref: FER0061168
Summary: The complainant alleged that the charges for providing copies of a planning application were excessive. The Commissioner notes recent reductions in these charges and accepts that the Council has satisfied itself that its charges do not exceed a reasonable amount in accordance with Part 2, paragraph 8(3) of the Environmental Information Regulations 2004. The complainant has lodged an appeal.
Section of Act/EIR & Finding: EIR r.8 - Complaint Not Upheld