The curious case of charging for environmental information

In the ICO’s guidance, http://tinyurl.com/pevwe2g , on “Charging for Environmental Information (Reg8) updated (version 1.3) in June 2014 he concedes, based on East Sussex County Council v Information Commissioner and Property Search Group (EA/2013/0037), http://tinyurl.com/k99up27 , – see paragraph 17 – that a reasonable charge for supplying environmental information CAN include “The cost of staff time spent locating, retrieving and extracting the information” – Paragraph 14.

What then are we to make of his Guide to the Environmental Information Regulations, http://tinyurl.com/l8kn7e9 , updated (version 2.2) five months later in November 2014 which states at Page 32 : “ Any charge should be ‘reasonable’ … It should NOT include the cost of staff time in identifying, locating or retrieving the information from storage. ”

Curiously,ICO seems to be saying you can do this, but I would prefer if you didn’t.

Even curiouser, in the June guidance ICO says he had had a change of heart on this issue and did not think the previous law on the point derived from Kirklees Council v Information Commissioner and PALI Ltd [2011] UKUT 104, http://tinyurl.com/lzc5aco , was “now sustainable”, which is rather an odd proposition given that this was an Upper Tribunal case and, as we know, the Upper Tribunal is a Superior Court of Record, which means that its decisions create legally binding precedent – similar to the High Court. So ICO has, it seems, overruled legal precedent by making a concession in a lower court case.

Curiousest of all, I am not actually convinced the Kirklees case decided any such thing, being based on arcane questions relating to charging for information in the public Land Charges register – so perhaps that puts us back to square one. If nothing else ICO needs to sort out his guidance, otherwise he may face a rash of disgruntled appellants from both sides of the battlefield who have followed the wrong advice – whichever that is.

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