It is a now well and long-established principle of European and UK environmental law, that anyone is entitled to access information on the environment held by public bodies upon request.

Opponents of the creation of such a right, have argued that the costs of providing access to environmental information outweighs any benefit to citizens in allowing open access to information.^¹ Although this argument has not prevented the appearance of a right to access environmental information, it has been taken into account, since today access to environmental information is most of the times only available upon payment of a fee to cover photocopying and other costs.

1) Overview of the right to access environmental information: EC Directive 2003/4/EC and the Environmental Information Regulations 2004

The first legal instrument that created in UK law a right for anyone to access environmental information held by public bodies was the 1990 EEC (as it was then called) Directive on on “Freedom of Access to Information on the Environment”.^² Its objective was to create a general right of access to, and dissemination of, information on the environment held by public authorities. This Directive was implemented in the UK through the Environmental Information Regulations 1992^³ made under section 2(2), European Communities Act 1972. These Regulations, similarly to the Directive, provided that everyone was entitled to have access to information relating to the environment and held by public bodies upon payment of “reasonable” costs, subject to certain exceptions. Directive 90/313/EC has now been repealed and replaced by the new directive 2003/4/EC,^⁴ which has been implemented in England, Wales and Northern Ireland, by the Environmental Information Regulations 2004, which have repealed the 1992 Regulations.^⁵

EC Directive 2003/4 “transposes” into EC law the information provisions of the 1998 Åarhus Convention, which the European Community has signed. Åarhus grants the public rights and imposes on the state parties and public authorities obligations regarding access to information, public participation, and access to justice in environmental matters.

Environmental information is defined by the 2003 Directive and by the 2004 Regulations as:

"any information in written, visual, aural, electronic or any other material form on -

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive

waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the

elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c)”

Every public person who holds any environmental information to which the Regulations apply is under a duty to make that information available to every person who requests it as soon as possible, and in principle in no more than 20 days after the request is received. Public persons that owe such a duty are all Ministers of the Crown, government departments, local authorities and other persons carrying out functions of public administration at a national, regional or local level and also have responsibilities in relation to the environment, as well as any body with public responsibilities for the environment which is under the control of any of these persons. Private companies with obvious environmental functions such as those in the water, waste, transport and energy sectors are also covered.

The Regulations provide for various categories of exemptions that can also be found in the Directive. Regulation 12 lists the exceptions under which a public authority can refuse to disclose information. All the exemptions are subject to a public interest test according to which information can only be refused on one of the excepted grounds if the public interest served by the exemption outweighs the public interest served by the disclosure. There is also a presumption under the regulations that environmental information must be released, unless there are reasons to withhold it. Access to environmental information can only be refused if: it is not held by the public body to which the request is made; the request is manifestly unreasonable; the request is too general; the information requested is unfinished documents or data (in which case estimated time for completion must be given); the information requested concerns internal communications. Also information can be withheld if disclosure could jeopardise: confidentiality of proceedings; international relations; public security; defence; the course of justice and right to fair trial; commercial confidentiality; intellectual property rights; personal data; or the environment to which the information relates (i.e. information about the breeding sites of rare species).

Reasons for refusal have to be provided in writing, and if exempt information is contained in the same record with other information that is not exempt, then the latter information should be disclosed unless it is incapable of being separated from the exempt information. Any person dissatisfied with the refusal to provide information, or who considers that a request for information has been inadequately answered or delayed, since the 2004 Regulations came into force on the 1^st of January 2005, has a right to appeal. First, a right of reconsideration by the public body that made the decision has to be provided. Secondly, there is a right to apply to the Information Commissioner, who can then require the public body to comply. There is then a right of appeal to the Information Tribunal: both the Commissioner and the Tribunal will be able to go into the merits of the decision by the public authority. Third there is a right to challenge decisions of the Tribunal on points of law in the High Court by way of judicial review. However, even though appeals by way of judicial review have been possible for more than a decade since the Environmental Information Regulations 1992 came into force, their application has led to only five judicial review cases in the High Court and none in the Court of Sessions in Scotland or the High Court of Northern Ireland.^⁶ So few court decisions, in a period of time when there was no other enactment providing for a general right to access information shows one of two things: either that the Regulations have been correctly assimilated and applied by public bodies, thus resulting in small number of disputes; or that the cost and length of bringing judicial review proceedings taken in conjunction with their uncertain nature and the prospect of having to pay large costs to the defendant if the action fails, deter any potential claimants. There can be no certain answer to this question in the absence of any precise empirical research on this subject, although the overwhelming criticism that has been made of the Regulations for providing only for judicial review proceedings seems to indicate that the second answer is more probably correct.

Nevertheless, one should not overlook that prohibitive costs can render any right to information ineffective in practice. Also, providing for free access to information on the one hand might lead to huge costs for public authorities and ultimately for taxpayers, and on the other hand might deprive public bodies from information of great financial or commercial value that could have been charged at market value price thus preventing them of making potential benefits.^⁷

The present article aims to analyse the issue of costs in accessing environmental information in English law, in light of the very recent decision of the Information Tribunal in the case of David Markinson v. The Information Commissioner.^⁸

II) The provisions on costs of accessing environmental information

In order to understand the legal provisions on costs of accessing environmental information, it is useful to start by examining what was provided in the now repealed 1990 Directive as transposed in UK law by the repealed 1992 Environmental Information Regulations.

The 1990 Directive was very laconic on the issue of charging and only provided that member states were free to impose or not a “reasonable” charge for supplying information.^⁹ The 1992 regulations were also very brief and provided that public authorities were free to charge costs reasonably attributable to the supply of information and also to make the supply of any information conditional on the payment of such a charge.^¹⁰ These vague provisions had been heavily criticised because they allowed for costs to be a possible barrier to effective access to information.^¹¹ For instance, as Hallo indicated,^¹² Directive 90/313 did not explicitly rule out the possibility of charging for the mere search of information by public authorities. The European Court of Justice had been interpreting these provisions on charges (as the entire Directive) in a way leading to increased openness.^¹³ In Commission v. Federal Republic of Germany^¹⁴ the Court ruled that the term ‘reasonable fees’ for the purposes of Article 5 of the Directive 90/313 must be understood as meaning that Member States are not authorised to charge the entire amount of the costs actually incurred in conducting an information search.^¹⁵ Also, the ECJ ruled that a charge made where a request for information is refused, cannot be described as reasonable, since in such a case no information has in fact been supplied. The ECJ clearly ruled that charges can be reasonably levied only for the supply of information and ‘not for the administrative tasks connected with a request for information’.^¹⁶ The most important finding of the ECJ however, is the way in which all provisions of the Directive (including the term of ‘reasonable charges’) must be interpreted. The Court indicates that ‘the purpose of the directive, which is to guarantee freedom of access to information on the environment and to avoid any obstacles to that freedom, precludes any interpretation which is liable to dissuade those wishing to obtain information from making a request to that effect’.^¹⁷ This purposive approach and method of interpretation has to be adopted by national courts and legislators and is still relevant for the construction of the new 2003 Directive. If this purposive interpretation is applied to the phrase ‘reasonable costs’, this means, according to the court, that any interpretation which may have the result that persons are dissuaded from seeking to obtain information or which may restrict their right of access to information must be rejected.^¹⁸

It is in this context of the 2003 EC Directive as implemented in England by the Environmental Information Regulations 2004, that the David Markinson case was decided.

The facts of the case are quite straightforward. The Appellant David Markinson, requested Kings Lynd and West Norfolck BC photocopies of some planning documents relating to his house. According to the council’s charging scheme for provision of information, applicants were then required to pay £6 for a copy of any planning and building control decision notice (a charge that was later increased to £6.50 and then reduced to 50p) and also charged 50p for each piece of all other A4 size photocopy. The appellant, refused to pay, considering these charges were excessive and initially appealed to the Information Commissioner. He argued that the council was in breach of reg. 8(3) of the Environmental Information Regulations 2004, which provide that charges for provision of environmental information “shall not exceed an amount which the public authority is satisfied is a reasonable amount”.

Therefore, David Markinson complained to the Information Commissioner against the charges imposed on him, arguing they were unreasonable and that as a consequence reg. 8(3) had been breached by the council. Very unfortunately, the Information Commissioner dismissed his complaint without even examining the fact whether the charges imposed by the council were reasonable or not in the Commissioner’s opinion.^¹⁹ The Information Commissioner considered that since the council was satisfied the charges they were imposing were reasonable, this satisfied the provision of reg. 8(3) which provides that charges should not exceed a reasonable amount which “the public authority is satisfied” is a reasonable amount.^²⁰

If such an interpretation was to be adopted, it would mean that public authorities would be the sole judges of what is a reasonable amount, and thus leave no room for any review by other bodies. So, David Markinson appealed against the Information Commissioner’s decision to the Information Tribunal.

The Information Tribunal, dismissed the Information Commissioner’s view that what are reasonable charges is solely a matter of subjective judgement for the public authority, and accepted that what are “reasonable charges” can and should be reviewed by the Information Commissioner and the Tribunal. Nevertheless, the Information tribunal did not accept that what was reasonable was subject to a full review, but it held that the correct test to apply is a test similar to the “Wednesbury unreasonableness” test.

“the Commissioner was required to consider, first, whether the Council honestly believed that the charge structure it had set out did not exceed a reasonable one and, if it did so believe, to consider, secondly, whether that was a belief that a reasonable authority, properly directing itself to the relevant law and facts, could hold, or was one that had been arrived at by either taking into consideration irrelevant factors or ignoring relevant ones”^²¹

The Information Tribunal also held that the relevant factors to take into account when examining a decision as to what charges are reasonable are:

1) Whether charges reflect the actual costs incurred by a public authority for providing the information.

2) Whether charges have been recently updated in order to reflect the constant failing cost in the field of reprography.

3) Whether charges do not reflect the full cost of responding to a request, as it is not reasonable for a public authority to pass on the full costs of responding to a request to the applicant.

4) Whether the available, non-binding, guidance by the Government on the application of the Environmental Information Regulations 2004 has been taken into account. This Guidance includes a Code of Practice issued by the Department for the Environment Food and Rural Affairs on the obligations of public authorities under the Environmental Information Regulations 2004^²² and a booklet also published by DEFRA entitled Guidance to the Environmental Information Regulations 2004.^²³ This guidance generally advises that the charges should not exceed the costs of producing the information. Other guidance to take into account are the booklet provided by the Department for Constitutional Affairs (DCA) under the title Guidance on the application of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations^²⁴ (which suggest that bodies should only charge for the actual costs of photocopying and printing which in most cases should not exceed 10p per page) and to a booklet published by the Office of Deputy Prime Minister giving good practice guidance on access to and charging for planning information^²⁵ (which similarly suggests that a reasonable charge would be similar to commercial rates at photocopying shops, that is, 10p for each page of A4 paper).

The Information Tribunal, also indicated some factors, that public bodies are not to take into account in the assessment exercise, otherwise their decision on charging is flawed. These irrelevant factors are:

1) The cost of the officers’ time in locating and retrieving the requested information, since reg. 8(2) of the Environmental Information Regulations 2004 provides that environmental information has to be made available, albeit just for inspection, free of charge.

2) A potential drop in revenue and increase in workload, if charges are set too low. This is fundamentally important, as it shows that charges cannot be used as a deterrent for the public to request information.

3) The perceived importance for the applicant of the information requested. In the present case planning applications decisions were charged by the council more, as being considered more important for applicants

After the Information Tribunal had laid down the above criteria as to how public authorities and the Information Commissioner are to asses what are reasonable charges, it held that the Commissioner’s initial decision was wrong in its assessment and that the council had failed to charge reasonable fees for providing the requested information. As a consequence the Information Tribunal remitted the matter to the council for reassessment of its charges for providing environmental information. The Information Tribunal indicated that any assessment of charges should me made taking into consideration the following grounds:

“(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;

(ii) 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.”^²⁶

IV) The importance of the decision: the extent of the Information Commissioner’s review powers in assessing what are reasonable charges.

In the David Markinson case, the Information Tribunal answered a fundamentally important legal question: to what extent can the Information Commissioner asses what charges are reasonable. The Information Tribunal held that this should mainly be for public authorities to decide, and that the Information commissioner should only intervene if the public body, properly directing itself to the relevant law and facts, could hold that the charges were reasonable, or if the decision on charges had been arrived at by either taking into consideration irrelevant factors or ignoring relevant ones.

This approach undoubtedly reflects the traditional “Wednesbury unreasonableness” test to be found in English Administrative law, according to which courts will not interfere with a decision of a public body, unless it is so unreasonable that no reasonable authority could have made it. In making this assessment, the court is only entitled to investigate the action of the authority with a view to seeing if it has taken into account any matters that ought not to be or disregarded matters that ought to be taken into account.

It can be contended that such an interpretation, does not accurately reflect EC law. According to article 5(1) of Directive 2003/4/EC on public access to environmental information, “Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.” This wording seems to indicate that whether a charge is reasonable is not a matter of judgment for the public body but instead is a matter of fact. The Tribunal dismissed this argument on the dubious grounds that the wording of the article gave the members states some discretion, or margin of appreciation as to how article 5 was to be transposed into law. In reaching this conclusion, the Tribunal seems to have considered the fact that it could be burdensome and intrusive if the Commissioner had always to make his own decision as to whether a particular charge was reasonable.

However, it can be contended that, in view of the ECJ’s case-law on the matter, the correct test to be applied is that the Information Commissioner must have the power to re-assess what charges are reasonable in any given circumstances, since he is obliged under EC law to apply a purposive interpretation of the Environmental Information Regulations 2004 and this requires the Commissioner to be able to reach his own view of what is reasonable in each case. This is necessary since the ECJ has indicated in the Commission v. Germany case^²⁷ that any interpretation of what constitutes 'a reasonable cost which may have the result that persons are dissuaded from seeking to obtain information or which may restrict their right of access to information must be rejected. If the Commissioner does not have the power to review fully the decisions of public authorities concerning charges, he will not be able to apply this purposive legal test, thus leading in a breach of EC law.

V) Comparison with the charging scheme of the Freedom of Information Act 2000

The Freedom of Information Act 2000 also provides that any person is entitled to access any type of information (except environmental information) held by public bodies upon request and upon payment of a fee. However, the provisions on charging are very different to the Environmental Information Regulations 2004 and it is important to examine them, as they do not favour access and dissemination of information as much as in the Regulations.

Section 12 of the 2000 Act allows public authorities to refuse to answer requests for information if the cost of complying would exceed an "appropriate limit" prescribed in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.^²⁸ This exemption does not exist in the environmental information regulations, since both the Aarhus Convention and the 2003 Directive do not contain such a provision.

Moreover, reg. 4 of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, sets out what may be taken into account when public authorities are calculating what costs can be charged for providing information under the 2000 Act and so, whether the cost of the request would exceed appropriate limits and therefore can be refused. A public authority may, for the purpose of its estimate, take account only of the costs it reasonably expects to incur in relation to the request in-

The Regulations also provide that staff-time costs, regardless of the actual costs, is uniformly set at £25 per person per hour.

It is clear from the above, that the fees regime under the Environmental Information Regulations albeit similar to that of the Freedom of Information Act 2000, is much more liberal in the sense that they favour greater access to information. This is because in the environmental information regime, first, there is no appropriate limit above which public authorities can refuse requests, and since, second, the staff costs in locating and extracting the information cannot be charged to the applicant, but have to be met by the public authority.

It is clear from the above, that the 2004 environmental information regulations are a more powerful legal instrument than the Freedom of Information Act 2000, at least in the field of environmental information. Thus the environmental information regime in England can be considered as being more liberal than the general regime, when the fees regime is examined.

VI) Conclusion

The David Markinson case, the first Information Tribunal decision in the field of the Environmental Information Regulations 2004 is undoubtedly an important one.

In summary, the effect of the Tribunal’s decision is that public authorities will in future have to justify any photocopying charges for providing environmental information greater than 10p per sheet. Although the Tribunal set out guidelines indicating in which cases these charges can be exceeded, the conditions to be met are such that it will be very difficult for an authority to do that.

Therefore, the decision of the Tribunal is to be welcomed as laying down useful and important criteria as to how public authorities are to decide what are reasonable charges in the field of environmental information, especially since it will also allow the Information Commissioner to asses to some extent whether charges are reasonable. All this should be guiding to greater openness in the field of access to environmental information, which, is hoped, will lead to better environmental protection through greater public awareness of environmental matters.

*The author is an Associate Lecturer at the University of the Aegean (Greece), and has written a PhD on the subject of the Right to Access Environmental Information.

1See on arguments in favour and against access to environmental information: Maurice Frankel “How Secrecy Protects the polluter”, in Des Wilson (ed.), The Secrets file, the case for freedom of information in Britain today, London: Heinemann Educational, 1984, Ch. 3 pp. 22-58; Clíona Kimber, Understanding Access to Environmental Information: the European Experience, in Tim Jewell and Jenny Steele (ed.) Law in environmental decision-making: national, European, and international perspectives, Oxford University Press, 1998, at pp. 141-144; Patrick Birkinshaw, Freedom of Information – The Law, the Practice and the Ideal, 2nd edition 1996, Butterworths, at Ch. 1; Jeremy Rowan-Robinson, Andrea Ross, William Walton, Julie Rothnie, Public access to Information: a means to what end? [1996] 8(1) JEL 19-42.; Gerd Winter, "Freedom of environmental Information", Ch. 7 in Lomas Owen (ed.), Frontiers of Environmental Law, London: Chancery Law Publishing, 1992, at pp. 102-114

2Council Directive 90/313/EEC of 7 June 1990, on “Freedom of Access to Information on the Environment”, OJ L 158, 23 June 1990, 56. See W. Birtles, ‘The European Directive on Freedom of Access to Information on the Environment’, [1991] Journal of Planning Law 607.

3The Environmental Information Regulations 1992 have been amended by the Environmental Information (Amendment) Regulations 1998, in order to fully align the exceptions to disclosure of information in the regulations with the derogations set out in Directive 90/313/EEC.

4Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on “Public Access to Environmental Information”, repealing Council Directive 90/313/EEC, OJ L 041, p. 26.

5On these see the website of the Department of the Environment at

www.defra.gov.uk/corporate/opengov/eir/index.htm. As far as Scotland is concerned, the Scottish Executive has transposed the new Directive through its own regulations, the Environmental Information (Scotland) Regulations 2004. Also it should be noted that Scotland has its own Freedom of Information (Scotland) Act 2002 and its own Scottish Information Commissioner.

6These figures only cover reported cases but include applications to leave. These cases are:

Maile v Wigan MBC [2001] Journal of Planning Law 193; R. v Secretary of State for the Environment, Transport and the Regions, ex parte Alliance Against the Birmingham Northern Relief Road (No.1) [1999] Journal of Planning Law 231; R. v Tower Hamlets LBC, ex parte Tilly [1996] Environmental Law Review D23, [1996] 6(6) Planning and Environmental Law Bulletin 45; R. v British Coal Corporation, ex parte Ibstock Building Products Ltd [1995]. Environmental Law Review 277; R. v Secretary of State for the Environment Transport and Regions, ex parte Anthony Marson, 23 March 1998, CO/911/98 (unreported application for leave).

7For instance the Chief Executive of the Ordnance Survey has stated that the Regulations “could result in the rights of Ordnance Survey in its maps being seriously and unreasonable prejudiced, with equally serious adverse consequences for its business. The very future existence of Ordnance Survey in a capacity capable of maintaining the nation’s map database would be jeopardised”. Cited by Peter Roderick, United Kingdom, in Access to Environmental Information in Europe, ed. By Ralph E. Hallo, Kluwer Law, London: 1996, at p. 271-272.

8Available at: http://www.informationtribunal.gov.uk/our_decisions/documents/david_markinson_v_info.pdf

For a commentary of this decision, see Michael Purdue [2006] JPL Current Topics, August.

11See inter alia Gisèle Bakkenist, Environmental Information: Law, Policy and Experience, Cameron May 1994, at p. 39. Also as a research has pointed out, charging provisions for the provision of the same quantity and type of information by different public authorities can vary considerably and sometimes exorbitant charges can be made. See J. Rowan-Robinson et al., Public access to Environmental Information: a means to what end?, [1996] JEL 19, at p. 34-35.

13Also in Commission v. the Kingdom of Spain, an action filled on 21May 1999 (case C-189/99, OJ 1999/C 226/26) but later withdrawn from the register (OJ C 118, 21/04/2001 p. 28), the Commission argued the failure of transposition into Spanish law of Directive 90/313 because there were no specific provisions in Spanish law concerning charging for the provision of environmental information and providing that these charges may not exceed a reasonable cost.

14Judgement of the European Court of Justice (Sixth Chamber) of 9 September 1999 in Case C-217/97: Commission of the European Communities v Federal Republic of Germany, OJ C 352, 04/12/1999 p. 3

15Par. 48 of the judgement: ‘... the term “reasonable” for the purposes of Article 5 of the directive must be understood as meaning that it does not authorise Member States to pass on to those seeking information the entire amount of the costs, in particular indirect ones, actually incurred for the State budget in conducting an information search’.

19The full text of the Information Commissioner’s decision (dated 20th July 2005, ref: FER0061168) is available at:

http://www.ico.gov.uk/documentUploads/61168%20DN.pdf

20The Information Commissioner’s Office had previously, in a different case, also found that it was reasonable for planning authorities to charge almost any amount they considered reasonable (£16 for Decision Notices and £6 for copies of letters on a planning file). See the Information Commissioner’s Decision Notice Dated 21st July 2005, Ref: FER0074855, available from: http://www.informationcommissioner.gov.uk/cms/DocumentUploads/74855%20DN.pdf

22Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004 (SI 2004 No. 3391). Available at: http://www.defra.gov.uk/corporate/opengov/eir/cop.htm

25Office of the Deputy Prime Minister, Formulation of Guidance on Access to Planning Information and Charging for Copies of Documents, September 2004, available at: http://www.dclg.gov.uk/embedded_object.asp?id=1145391

28The "appropriate limit", for the purposes of section 12 of the Freedom of Information Act, has been set in reg. 3 at £600 for central government and Parliament and £450 for other public authorities, including local authorities, police, the health service and education.