Charging for information under the Environmental Information Regulations (EIR)

About this detailed guidance

This guidance discusses charging for environmental information in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide, or if you need a deeper understanding to help you apply regulation 8 in practice.

In detail

• Can we charge for environmental information?
• Why doesn’t FOIA apply?
• What do the EIR say?
• What can’t we charge for?
• Can we offer the requester the opportunity to inspect the information instead of providing it at a charge?
• Is charging reasonable?
• How do we calculate a “reasonable” amount?
• When can we apply commercial charges?
• Do we need a schedule of charges?
• Can we charge under other legislation?
• Can we ask for payment in advance?
• Further reading

Can we charge for environmental information?

Yes. The overall purpose of the Environmental Information Regulations (EIR) is to encourage straightforward access to environmental information. Public authorities can charge for supplying environmental information, but any charge must be reasonable and take account of the aim of the Regulations, ie everyone’s right to access environmental information.

When thinking about a charge, you should begin by considering whether it’s reasonable to apply a charge and whether it would deter the requester from accessing the information. Once you are satisfied that a charge is reasonable, you should then calculate the time and costs you will incur in supplying the information, and again consider whether the amount is also reasonable. Any charge you apply cannot exceed the actual cost of supplying the information. The Commissioner’s position is that routinely charging for supplying information under the EIR is not reasonable, as it does not align with the purpose of the EIR and may act as a deterrent to requesters.

If you determine that it would be reasonable to issue a charge, this may include:

• the actual costs of the staff time it takes to locate information;
• staff time to put the information in an appropriate format for disclosure; and
• the disbursements (eg photocopying, printing and postage costs) in transferring the information to the requester.

This is different to the Freedom of Information Act (FOIA) where disbursements are the only charges permitted unless answering the request exceeds the appropriate cost limit.

You must publish a schedule of charges in order to charge requesters for environmental information. Commercial charges are permitted in limited circumstances.

You cannot charge for other costs that relate to holding or providing access to information, for example the ongoing cost of maintaining a database.

You cannot charge requesters for inspecting the information or accessing public registers or lists of environmental information.

Why doesn’t FOIA apply?

The approach to charging for information under the EIR contrasts with that in FOIA, where you are only allowed to charge for disbursements unless answering the request exceeds the appropriate fees limit. The ICO has published guidance on Requests where the cost of compliance with a request exceeds the appropriate limit.

Section 39 of FOIA states that information is exempt from disclosure under the Act if the public authority is obliged to disclose the information under the EIR. The exemption is subject to a public interest test. Although there is a public interest in making information freely available under FOIA, the ICO considers that there is an overriding public interest in implementing the EIR as intended by the Directive. Therefore, the ICO would not accept the argument that it would be in the public interest for requests chargeable under the EIR to be handled under FOIA instead.

What do the EIR say?

The purpose of the EIR is to give the public access to environmental information and increase awareness of issues that affect the environment. Greater awareness helps:

• increase public participation in decision-making;
• make public bodies more accountable and transparent; and
• build public confidence and trust.

Under the EIR:

• Everybody has a right to access environmental information.
• A requester does not need to give a reason for wanting the information.
• You must treat all requests for information equally.;
• You should treat any information you release under the Regulations as if you were releasing it to the world at large.

The key elements of Regulation 8 state:

8.- (1) Subject to paragraphs (2) to (8), where a public authority makes environmental information available in accordance with regulation 5(1) the authority may charge the applicant for making the information available.

(2) A public authority shall not make any charge for allowing an applicant –

(a) to access any public registers or lists of environmental information held by the public authority; or

(b) to examine the information requested at the place which the public authority makes available for that examination

(3) A charge under paragraph (1) shall not exceed an amount which the public authority is satisfied is a reasonable amount.
…

(8) A public authority shall publish and make available to applicants –

(a) a schedule of its charges; and

(b) information on the circumstances in which a charge may be made or waived.

While Regulation 8(1) allows a public authority to charge for making environmental information available, Regulation 8(2) specifies tasks which it cannot charge for.

Regulation 8(3) states that when a public authority is able to charge for information, it may only charge a reasonable amount.

Subsections (4) to (7) concern advance payment, which this guidance discusses later on.

What can’t we charge for?

Regulation 8(2) makes clear that public authorities cannot charge for access to public registers or lists of environmental information. It also sets out that public authorities cannot charge for allowing the requester to examine the information on-site, or at another location the public authority designates (for example, libraries).

This furthers the purpose of the EIR to ensure the public’s right of access to environmental information by allowing them to see, free of charge, what environmental information a public authority holds.

Public registers and lists of environmental information

One method of providing access to information is for authorities to provide public registers and lists of environmental information. These should be easy to access and straightforward to use. You should also provide clear instructions on how to access this information.

In this way, a requester is able to frame a request for environmental information more precisely. Charging for assisting in this is incompatible with promoting the right to access environmental information.

Not all public authorities have public registers or lists of environmental information. However, you should note that providing this information also enables you to meet the obligation set out in Regulation 4 to proactively and progressively disseminate the environmental information you hold.

You can achieve this by including the lists and registers in your guide to information (the means by which you meet your obligation to publish information and by including it in your model publication scheme).

Although the EIR does not provide a definition of a ‘public register’, it is likely to comprise a record of documents that statutory legislation entitles the public to access. Examples of public registers of environmental information include the:

• Planning Register;
• Contaminated Land Register;
• Hazardous Waste register;
• Water Quality and Pollution Control Register; and
• Register of Radioactive Substances.

The EIR also does not provide a definition of a ‘list of environmental information’. However, the Aarhus Implementation Guide (AIG), which you should read alongside the EIR, suggests that the terms ‘lists’, ‘registers’ and ‘files’ are often used interchangeably and the form of the list, register or file varies. This indicates that Regulation 8(2)(a) of the EIR is not limited to formal, statutory registers and can also include lists that you compile in various forms and for various reasons.

For example, the AIG states that this may include collections of documents relating to a decision-making process, such as an environmental impact assessment. The underlying purpose of these lists is that they can assist requesters in accessing environmental information they are interested in.

Examination of the information ‘in situ’

You should provide facilities for requesters to inspect the information, either by visiting your offices or alternative premises, for example a library. You cannot make a charge specifically for allowing access to the information in situ. However, the EIR do allow you to make a charge to recover the costs of locating the information and collating it in order to make it available for inspection. This charge must be reasonable and we consider this further down in the guidance. However, if the system that holds the information is easy for the public to access, a charge is unlikely to be reasonable. If you receive a request for inspection of material that would require a significant cost to prepare, the EIR may allow you to make a charge.

It is important that you ensure that the public can effectively exercise their right of access to environmental information, and that you establish and maintain facilities for the examination of requested information. Providing access to information but failing to inform the public of this option is not complying with your obligations. You should ensure that you advertise the right of access to, and inspection of, environmental information in an easily accessible and prominent manner.

The ICO has published guidance on the form and format of responses to EIR requests, which includes further information on allowing for inspection of environmental information.

Maintaining the information

The issue of whether a public authority may include the costs of maintaining the information in its cost recovery charge to the requester was considered in East Sussex County Council v Information Commissioner EA/2013/0037. The tribunal referred the decision to the Court of Justice of the European Union (the Court) to rule on two questions. One of which was whether East Sussex County Council could apply a flat fee to information on the basis of staff costs and overheads.

The Court found that as the EIR specifically states that public authorities cannot charge those who seek access to information available in registers or for examination of information on-site, it follows that an authority cannot charge for the costs of keeping and making available the same information.

The Court stated that Article 5 of Directive 2003/4/EC, from which the EIR are derived, differentiates between the examination of information, whether via public register or on-site, and the “supply” of information. It considered that if “supplying” included the establishing and maintaining of a register, list or database containing environmental information, requesters would be treated differently dependent on how they received the same information. Those who request that the authority provide the information to them would be charged for the overheads of maintaining the information, whilst those who viewed the information on-site or via a public register would not.

The Court also included in its considerations the fact that public authorities cannot charge for information already released to the public, which is an obligation provided under Article 7 of the Directive. This obligation applies to all environmental information that a public authority holds (unless an exception applies). The Court stated:

“53. …That obligation protects the public interest, irrespective of whether the public has in fact expressed an interest in the information listed or held. Holding and actively disseminating this (updated) information may well involve considerable cost (not least in terms of human resources and other general costs) and the material thus treated may also be used to respond to requests for supply of information. However, those costs are to be borne by the public purse.”

The Court determined that public authorities could not recover the costs of establishing and maintaining a database in which it has organised the environmental information it holds.

Can we offer the requester the opportunity to inspect the information instead of providing it at a charge?

Yes. Regulation 6 of the EIR provides requesters with the right to request information in a particular form or format, for example by email or in a Microsoft Excel spreadsheet. This right is not an absolute one; you can make the information available via other means if it is reasonable to do so, or if it is already publicly available and easily accessible to the requester.

The ICO has issued detailed guidance on public authorities’ obligations with relation to regulation 6.

The wording of regulation 6 specifies that the information must be easily accessible to the requester as well as publicly available. You should therefore take into consideration the individual circumstances of the requester and ensure that you are complying with the Equalities Act 2010 when offering in situ examination of environmental information.

Is charging reasonable?

Regulation 8 of the EIR provides that public authorities may charge for making environmental information available, as long as that charge is reasonable.

Access to environmental information is an important right and the financial cost of making a request should not prevent the ability to exercise that right.

You should ensure that any charge you apply does not mean that only those who can afford it can access the environmental information you hold. It is vital that everyone has access to environmental information and has the same opportunities to contribute to public debate. If an applied charge does deter requesters, this undermines the intended purpose of the EIR and the fundamental objectives that it is seeking to achieve.

The ICO considers that you should accept the costs associated with the routine administration of complying with requests as part of your obligations under the EIR. Most authorities follow this line and do not charge for complying with requests.

As such, there are limited circumstances in which charging for making environmental information available is reasonable.

The context of a request may affect the reasonableness of any charge. Where the information itself is unlikely to contribute to the public understanding of environmental matters, and is therefore of low public interest, it may be reasonable to charge for making the information available.

One of these circumstances is when a request is for information required during a property search. In this circumstance, the requester needs the information to complete a property transaction and is likely to only further the requester’s personal interests. Given that the requested information forms an essential part of a transaction which is likely to involve hundreds of thousands of pounds, a charge is unlikely to deter the requester from accessing the information. The Commissioner has issued specific guidance on property searches.

Where the request is for information that may add to public understanding on environmental matters, for example plans to build on greenbelt land or information on emissions, it’s unlikely that a charge would be reasonable. You should, however, be wary of attempting to attach levels of public interest to requested information in order justify a charge. Under the EIR, a requester does not have to state why they are requesting information, and it is inherent in the purpose of the EIR that access to environmental information is of significant public interest. It is also important to remember that you have an obligation to disseminate the environmental information you hold, and applying a charge to those seeking this information is unlikely to be reasonable.

Regulation 9 of the EIR requires public authorities to provide advice and assistance to members of the public trying to access environmental information. If you are considering charging for supplying information, you should advise the requester if it is possible for them to view the information on-site at no cost. The Code of Practice on EIR, issued by DEFRA, supports this:

“19. Where the applicant indicates that he or she is not prepared to pay any charge requested, the authority should consider whether there is any information that may be of interest to the applicant that is available free of charge.”

 

Including what classes of information are available to view free of charge in your schedule of charges also demonstrates your compliance with the requirement to provide advice and assistance.

You also need to satisfy yourself that applying a charge is not in contravention of the Equality Act 2010. For example, if a requester is unable to attend an in situ examination due to a disability, charging disbursements for providing a paper copy of the information is unlikely to be reasonable.

If you are considering applying a charge because the burden of complying with a request is too great, an exception may be more appropriate. Regulation 12(4)(b) allows public authorities to refuse a request as being manifestly unreasonable, on the grounds that the cost of responding would be too great. Regulation 12(4)(c) allows public authorities to refuse a request where the request is too general. 

How do we calculate a “reasonable” amount?

Regulation 8(1) permits a public authority to charge for supplying environmental information. However, regulation 8(3) states any charge cannot “exceed any amount which the public authority is satisfied is a reasonable amount”.

The Commissioner considers the overall reasonableness of any charge to be the most important consideration, rather than a focus on the precise activities which you can include in the cost. As set out above, the charge must not deter individuals from their right to obtain environmental information.

Once you satisfy yourself that applying a charge would be reasonable, you need to consider how much it would be reasonable to charge in the specific circumstances of the request.

You should be able to demonstrate why you believe a charge in each particular case is reasonable. This may mean providing a breakdown of the charges so the requester understands the basis for the fees. If they make a complaint, the Commissioner carries out an objective assessment of whether your charge was reasonable, including whether the amount would have a deterrent effect.

There are two broad types of costs for which you can apply a charge:

• The cost of staff time incurred when preparing information in response to a specific request. This includes time spent locating, retrieving and extracting the information and putting it into the required format.
• The costs incurred when printing or copying the requested information and sending it to the requester.

You can’t include the overhead costs of collecting and maintaining the requested information in any cost recovery charge you pass to the requester.

Regulation 8(3) makes clear that any charge you levy must not exceed the actual cost of making the information available.

You can only make a charge which is in line with a published schedule of charges. The ‘schedule of charges’ section below looks at this in more detail.

Staff time

The reasonableness of any charge for staff time often depends on how wide-ranging the request is and how well you maintain your records. When charging under the EIR, you should also consider your obligations under regulation 9 to provide advice and assistance. This may enable the requester to clarify or narrow down the request and thus incur a lower charge.

Any charges for staff time must be reasonable and you should not unfairly penalise requesters if you have poor records management. You can demonstrate the effectiveness of your records management by following the Code of Practice on the management of records issued under section 46 of the FOIA.

The EIR do not specify the rate at which you should calculate staff time. It is your responsibility to decide on the appropriate rates for your particular circumstances. You must set out any rate in your published schedule of charges, explained in detail below.

Under FOIA, public authorities must estimate staff time spent on identifying, locating, retrieving and extracting information at a flat rate of £25 an hour under The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the fees regulations”).

The Commissioner acknowledges that the fees regulations are a useful starting point for public authorities when calculating staff costs, however the fees regulations do not cover requests under the EIR. You should ensure that any EIR charges are in accordance with Recital 18 of the Directive, which states:

“Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question.”

This means that you cannot profit from charging for a request and you must be able to demonstrate how the amount you charge reflects the actual cost of making the information available.

The Commissioner strongly discourages charging for time staff spend considering the application of any exceptions and redacting exempt information. The subjective nature of this task, especially if reliance on an exception is particularly contentious or the public interest is a borderline decision, could result in charges which are objectively unreasonable to pass on to the requester.

Regulation 4 of the EIR requires a public authority to implement measures that improve access to environmental information. If you fail to take reasonable steps to progressively make environmental information available to the public, including by electronic means, then a significant charge for staff time is unlikely to be reasonable. The Guide contains further guidance on Regulation 4

You should not unfairly penalise requesters if you fail to keep records in a reasonably accessible state.

Disbursements

Disbursement costs incurred in supplying the requester with the environmental information usually include photocopying and postage. You can easily estimate postage using the Royal Mail website. When deciding the cost of photocopying or printing, you should generally consider the number and size of the sheets. In David Markinson v Information Commissioner (EA/2003/0014 28 March 2006) the Tribunal ordered the public authority to adopt the guide price of 10p per A4 sheet as the cost of photocopying. This gives an indication of the level of charge to adopt, and an authority would have to demonstrate a good reason for exceeding it. However, an authority would still have to consider the actual costs incurred in any particular case, as the cost of reprographics changes over time. Technological advances in reprographic equipment is likely to reduce the cost of photocopying and printing over time rather than increase it.

When can we apply commercial charges?

In general terms, a reasonable amount would not exceed the cost of making the information available. However, there are certain exceptions to this, one of which is where a public authority is permitted to make a commercial charge for information.

The ICO considers a market-based charge to be reasonable where the information is made available on a commercial basis and the charge is necessary to ensure such information continues to be collected and published. This comes from Recital 18 of the Directive, from which the EIR are derived. DEFRA’s guidance also refers to it and states that a “reasonable amount” includes a rate of return similar to that which comparable businesses achieve who face a similar level of risk.

Do we need a schedule of charges?

Yes. Regulation 8(8) of the EIR requires all public authorities to publish and make available to requesters a schedule of charges and information on the circumstances in which you may make or waive a charge.

Regulation 8(1) makes clear the ability to charge for making environmental information available is subject to all the other subsections, including Regulation 8(8).

This means in order to charge requesters for environmental information, you must first publish the schedule (together with details of when you may make or waive charges) and make it available to requesters.

In the case of Leeds City Council v Information Commissioner and the APPS Claimants (EA/2012/0020 and 0021; 22 March 2013) the First-Tier Tribunal made very clear the connection between regulation 8(1) and 8(8).

At paragraph 119 the Tribunal stated that:

“it is a requirement, not an option, for public authorities to publish a schedule of charges capable of being scrutinised and tested to ensure that it is fair and takes into account relevant and permissible costs. This is to safeguard applicants from abuse and inconsistency. … Parliament cannot have intended for a publication breach to have no implications, and that there is a reason why the ability to charge in r.8(1) is subject to “the publication requirement in r8(8). It follows that the failure of the Council to publish a schedule of charges results in the loss of its entitlement to levy a charge under r.8(1).”

As well as being a condition for charging, providing a schedule of charges gives an requester the opportunity to consider the cost of the request before actually making it.

The Commissioner recommends that you publish a schedule of charges on your website as part of your publication scheme. This also complements the requirement to adopt the model publication scheme.

A schedule of charges does not commit you to charge for information in every case. The schedule is a starting point for calculating a charge, but should not be the sole consideration. You should still consider whether a charge is reasonable in relation to each specific request.

You should ensure the schedule sets out the basis for the calculation of charges, as well as the following items:

• Standard costs involved in the supply of information, such as the charge per sheet of photocopying and the charge for providing information on CD-ROM and other formats.
• A list of priced publications.
• Any concessions you offer to requesters such as pensioners and those receiving benefits.
• Circumstances where the supply of information is conditional on advance payment.
• An explanation of how you calculate charges for staff time.

Can we charge under other legislation?

You should not assume that charges based on other statutory provisions are reasonable under the EIR.

So, even when you have a statutory basis for allowing an alternative charging mechanism, if you receive a request for underlying environmental information, the EIR is likely to take precedence and any charge must be reasonable under the EIR.

Nevertheless, there may be circumstances where charges based on an alternative statutory provision may be reasonable for the purposes of the EIR. This emphasises the importance of a public authority being able to satisfy itself on a case-by-case basis that charges are reasonable.

If you are charging a fee for making information available under the EIR, you should also be aware of the effect of the Re-Use of Public Sector Information Regulations 2015 (RPSI). This includes duties in relation to allowing the re-use of information. RPSI applies to information you produce, hold or disseminate within your public task and for which you hold copyright, which includes most EIR public authorities. If the public can access information under the EIR (or FOIA), then the public sector body also has to make it available for re-use on request (although libraries, museums and archives can choose whether to allow re-use).

Under RPSI regulation 15, public sector bodies can make a charge for allowing re-use, but in most cases this is limited to only the marginal costs “incurred in respect of the reproduction, provision and dissemination” of the information. Certain bodies such as trading funds can charge above this level.

The significance of this in terms of EIR is that, if you have made a charge for certain costs when providing information under EIR, you cannot charge for the same costs when allowing the re-use of that information under RPSI. In other words, there can be no ‘double charging’.

Can we ask for payment in advance?

Regulation 8(4) allows a public authority to require advance payment of a charge for making environmental information available.

Once you satisfy yourself that it is reasonable to apply a charge to a request for information, you must inform the requester of this within 20 working days. You can either inform the requester that you require payment once you provide the information or you can request payment in advance.

If you decide that you require an advance payment, the period from the day of this notification to the day you receive the payment does not count towards the time limit for responding to the request.
The requester then has 60 working days following issue of the notification to make the payment. If they do not pay you within this period, you do not have to proceed with the request.