AIE – Page 2 – TheStory.ie

NAMA -vs- TheStory.ie

This week will see the culmination of more than three years of work on the part of TheStory.ie to try and obtain information from the National Asset Management Agency (NAMA) and Anglo Irish Bank (now the defunct IBRC) through a legal process called an Access to Information on the Environment request (AIE). Those of you who have been following this saga since 2010 will be familiar with the arguments at play but for those who have not this is the story so far.

The Supreme Court will hear arguments on Friday May 31, about whether a stay should be granted or refused on the judgment of the High Court that NAMA is a public authority, pending an appeal to the Supreme Court. We are asking the court not to grant a stay, NAMA are asking for a stay.

How did this start?

In February 2010 we sent an email to NAMA asking for information including loans it manages (and therefore property it owns or controls). NAMA sent us an email back saying that they were not obliged to answer our request because they did not consider themselves to be a public authority as defined in the Access to Information on the Environment Regulations 2007. Anglo Irish Bank refused on the same basis. We appealed those decisions to an internal review and were refused on the same basis. We then appealed their refusals to the Office of the Commissioner for Environmental Information.

How did the Commissioner react?

In what’s known as a preliminary view (the investigator’s initial position on the case) the Commissioner disagreed with us and said that NAMA (and Anglo) were correct in their view that they were not public authorities. The next step in the process is that parties are invited to make further submissions on the basis of the preliminary view. It was at this stage we invited people to contact us with any legal opinions they had, and Fred Logue contacted us to offer his assistance. We then made further submissions. And waited.

What did the Commissioner decide?

In rulings in September 2011, 20 months after our original requests, the Commissioner ruled in our favour in both the NAMA and Anglo Irish Bank cases. In her ruling the Commissioner did not tackle certain elements of the Regulations about what defines a public authority (the a, b and c definitions) but rather focussed on the list after the words “and includes”. The crux of the issue was what “and includes” means in Irish statutory interpretation.

How did NAMA and Anglo react?

Under the Regulations, NAMA and Anglo could appeal the Commissioner’s decision to the High Court on a point of law, within 8 weeks of the decision. Both did so. Anglo joined us as a notice party to the case, NAMA did not. Then the waiting began for the court hearing. In the meantime the Anglo case was set aside, pending the NAMA case, as both were about substantially the same issue.

What happened at the High Court?

In July 2012, over the course of one and a half days of court sittings, Brian Murray SC, representing NAMA and Niamh Hyland SC, representing the Commissioner, argued the merits of the case before the recently appointed Mr Justice Colm Mac Eochaidh. TheStory.ie was not a notice party and made no representations to the Court, however we did attend. The arguments centred on the meaning of the words “and includes”.

What did the High Court decide?

Six months later the High Court made its judgment in February 2013. Judge Mac Eochaidh said: “I have no difficulty identifying the natural and ordinary meaning of the words at issue in these proceedings once the legislative intention is clear, as it is here. And on the application of the un-rebutted presumption of faithful transposition, the meaning of words used is beyond doubt.”

What did NAMA do then?

NAMA sought a stay on the judgment pending an appeal to the Supreme Court. At this point the Commissioner took a neutral position on the issue of whether a stay should be granted. Judge Mac Eochaidh noted that if a stay were granted then it was likely that the rights of the requester would be affected, and therefore before ruling on the stay issue, he invited us to make a submission to the court.

What was the submission?

Among the points we made orally and in writing to the High Court were that the Regulations (and the Directive and Convention on which the Regulations are based) guarantee a timely process. We argued that we would be prejudiced if a stay was granted, since appeals to the Supreme Court could take up to five years to be heard. Rather, a stay should not be granted since NAMA could answer requests for information in the interim between now and when a Supreme Court appeal is heard.

What did the High Court decide?

On April 19, Judge Mac Eochaidh ruled in our favour. It is worth noting at this point that since the Commissioner had taken a neutral position on the issue of the stay, she is no longer playing an active part in the matter. The argument was only between NAMA and TheStory.ie. He noted:

NAMA decided to dismiss Mr. Sheridan’s 2010 request for information on a threshold issue as to whether or not it was a public authority. No other decision has ever been taken by NAMA on his request even though it could have decided whether or not the information he sought comprised environmental information as defined and whether or not any of the mandatory or discretionary grounds for refusal of information were applicable. Thus, by framing its refusal so narrowly, NAMA have effectively neutralised the whole of Mr. Sheridan’s request and have ensured that the process is likely to take further time and result in further appeals to the Information Commissioner. The elongation of the process for deciding Mr. Sheridan’s request seems to be the direct result of the unnecessarily narrow approach adopted by NAMA in determining the request.

What did NAMA do then?

NAMA disagreed with the stay judgment and appealed it to the Supreme Court (yes that means there are two Supreme Court appeals – one on the original February 2013 ruling that they were a public authority, and the other on whether a stay should be granted). The Supreme Court asked that both NAMA and we make submissions to the Court – both parties have now made those submissions. The court must now decide on whether or not a stay should be granted, and will hear arguments from just two parties – NAMA represented by Brian Murray SC and us, represented by myself.

Is this not costing you money?

No, it has only cost us time. All the legal fees up to this point have been footed by both parties – NAMA on one side and the Commissioner on the other (now at €121,350 and rising). Since we are not a notice party to the case we are not exposed to costs. Indeed when we were successful in our arguments against NAMA on the issue of the stay in the High Court, we were asked if we wished to apply for costs – we refused, saying that the case had cost the taxpayer enough already.

Why didn’t you use the Freedom of Information Act?

NAMA was deliberately excluded from the schedule of bodies covered by FOI by former Finance Minister Brian Lenihan, citing ‘commercial sensitivity’ concerns. Therefore the path of using FOI to obtain information was not open to us. However the current draft bill for the amendment of the FOI Act includes NAMA as a body.

What happens if you lose?

NAMA will be under no obligation to answer AIE requests and we will have to wait until a Supreme Court judgment to decide on the issue, which could be as late as 2018.

What happens if you win?

NAMA will become a de facto public authority under the Regulations pending the Supreme Court appeal, so will have to act as if it were a public authority until the Supreme Court rules on the matter. Under the 2007/2011 Regulations, NAMA will be obliged to answer requests from the public and do things such as “inform the public of their rights under these Regulations and provide information and guidance on the exercise of those rights, make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means, ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable and maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found”.

The Information Commissioner's 2012 annual report

The Information Commissioner published her annual report for 2012 yesterday. It’s worth a read to see some of the highs and lows of the Freedom of Information and Access to Information on the Environment regimes in Ireland in 2012.

One note in relation to AIE caught our eye. The Commissioner in her role as Commissioner for Environmental Information noted that:

My Office’s appeal to the Supreme Court against the judgment of Mr. Justice O’Neill in An Taoiseach v. Commissioner for Environmental Information (Case CEI/07/0005) is still pending.

This is an interesting case for a number of reasons including the issue that it raised as well as the length of time that it is taking to reach a final binding decision.

The appeal was lodged on March 2007 with the Commissioner; it being only the second appeal to be dealt with by the Commissioner (there have been more than 80 in total since 2007). The Commissioner found in favour of the requester, but that decision was appealed to the High Court where it was overturned. The Commissioner subsequently appealed to the Supreme Court where the matter is still pending more than six years after the request for information was first made.

As regular readers may be aware article 9(4) of the Aarhus Convention guarantees a judicial review process that is fair, equitable, timely and not prohibitively expensive. As we argued in NAMA -v- Commissioner for Environmental Information it is hard to see how the State and the EU have vindicated Irish citizen’s rights under Aarhus when final court decisions are taking in excess of six years to be delivered.

The second point relates to the Irish transposition of Directive 2003/4/EC on public access to environmental information. Under Aarhus and the Directive information relating to emissions into the environment may not be exempt (except under administrative exemptions such as unreasonable request, internal discussions etc.). This ensures that the public can access this information to a greater extent than non-emissions related information bearing in mind the interest the public has in accessing this type of information. Emissions are defined broadly in the Aarhus implementation guide: “direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into the air, water or land.” (page 60)

However when Ireland transposed this Directive it qualified this mandatory disclosure of emissions-related information by excepting cabinet discussions (see Articles 8(b) and 10(2) of the AIE Regulations). This qualification does not appear to have any basis in either the Convention or the Directive.

Mr Fitzgerald sought access to a range of cabinet documents concerning greenhouse gas emissions but the appeal was narrowed to a single note of a cabinet discussion that related directly to such emissions.

The Commissioner was of the opinion that the cabinet confidentiality exception although made under Article 28 of the Constitution was not permitted under the Directive and that since the Directive met the criteria for direct effect under EU law she should apply the Directive to the request. She allowed the request and ordered the Government to release the information.

The decision was appealed to the High Court which held in June 2010 that the Commissioner did not have the legal power to interpret the Regulations beyond its terms including the power to give direct effect to the terms of the directive. The Court further held that in any event the information requested was also exempt under the internal discussion exemption.

The Commissioner appealed this decision to the Supreme Court where it is now pending for three years, in total more than six years after the original request was made. In that time the Commissioner’s office has disposed of 80 further appeals.

Swords -v- OCEI: Was there ever any doubt over search and retrieval charges for AIE?

The recent appeal decision by the Commissioner for Environmental Information highlights that during the previous five years search and retrieval fees have been wrongly charged by public authorities for requests for access to environmental information. The decision also provides a good opportunity to summarise how the provisions of Directive 2003/4/EC relating to fees have been interpreted in Ireland and the UK.

The impermisibility of charging search and retrieval fees has been clear since an earlier 2008 decision of the Commissioner in Open Focus and Sligo County Council. In that case (which was not appealed) the issue of discretionary fees, although not the main issue, was examined in detail by the Commissioner who found that search and retrieval fees are not permitted:

“Furthermore, in order for a decision maker within the Council to deal with the request for information and form a view as to whether it could be supplied under the Regulations, it would be necessary for the information at issue to be identified and retrieved. There is no provision in the Directive or in the Regulations for the charging of fees for the processing of a request for access to environmental information. Following the assessment of the information and, as in this case, a decision to release it, I consider that it is the next step – the supply of the information to the requester in copy form – that potentially attracts the charge.”

Accordingly since May 2008 public authorities should have been under no doubt that search and retrieval fees were not permitted to be charged. Worryingly the Open Focus decision seems to have been completely ignored by most public authorities including, it must be said, the Department of the Environment which up until this month continued to publish guidelines which explicitly stated that search and retrieval fees could be charged.

Only after the Commissioner decided against the Department of the Environment itself has it finally decided to modify its guidelines to bring them into compliance with the Open Focus decision.

Interestingly the issue had not been subject to a definitive adjudication in the UK until 2011 when the Upper Tier Tribunal in Kirklees Council v Information Commissioner and PALI Ltd [2011] UKUT 104 held that such fees may not be charged for in situ examination and the First Tier Tribunal further held in Leeds City Council -v- Information Commissioner that charges could only be levied for the costs of transferring environmental information (e.g. costs of reproduction) to a requestor who did not wish to examine it in situ. Each of these cases arose from appeals by commercial property searchers (who provide responses to standard Law Society questionnaires as part of conveyancing transactions) against search and retrieval fees charged by local authorities for access to environmental information required by them to fill out the search questionnaires.

The UTT in Kirklees had little doubt on the issue:

“[98] We also disagree with Mr Coppel’s submission that the word “supply” in that sense can be extended to cover the process of locating and retrieving information for examination. We consider that the proper reading of Article 5(2) of the Directive and Regulation 8(2)(b) of the EIR is to prevent a public authority from charging an applicant for examining in situ the requested information and to permit fees to be imposed only for supplying the information in some different way, e.g. by provision of a copy of some sort. To put it simply, an authority that makes a charge for going and getting the information to make available for examination in situ, and refuses to make it so available unless the charge is paid, is not making that information available for examination without charge.”

Moreover, the FTT in Leeds City Council further emphasised the Kirklees decision:

“[78] … Kirklees confirms that a public authority may not impose any charge or recover any cost for making information available for inspection. It would be wrong, in principle and in light of the purpose of the Directive, that a public authority which has not done the work necessary to put in place systems so that the information is in a form in which it can be inspected, free of charge, to be able to pass on to a requester the costs of locating and retrieving the information to put it into a format in which it can be made available.”

and went on to hold that:

“[98] … having regard to the provisions and underlying aims of the legislation, the cost of ‘making available’ environmental information should be construed narrowly so as to apply only to the cost associated with the process of supplying (i.e. transferring) the information to an applicant once the requested information has been located, retrieved and put in disclosable form. Any other interpretation would have significant adverse consequences to those wishing to access environmental information.”

While the issue has not been the subject of a definitive decision by the CJEU it seems likely that this court will also follow the rationale of the Irish and UK cases. In fact in case C-217/97 Commission -v- Germany Advocate General Fennelly (as he then was and now a member of the Supreme Court) stated in his opinion at para 23:

“The notion of what is ‘reasonable‘ must in my view be interpreted in the light of the general scheme and purpose of the Directive, and of the context in which it is used. As already noted, the Directive proceeds upon the basis that access to environmental information will ‘improve environmental protection‘. Its primary objective is ‘to ensure freedom of access to … [such] information‘, and it seeks to achieve this end by obliging the Member States to ensure such informationis effectively ‘made available … to any natural or legal person at his request without his having to prove an interest‘. In the light of this objective and the means chosen to achieve it, the question of whether the charges for the supply of the information are ‘reasonable‘ must be judged from the perspective of the member of the public requesting the information, rather than from that of the public authority. While it does not expressly preclude a Member State levying a charge for the time and effort of public officials, such an approach seems to me to be fundamentally incompatible with the principal features of the Directive.”

Ultimately the ECJ (as it then was) did not need to rely on this element of AG Fennelly’s opinion but it seems likely that it would adopt it should the it be required to do so.

It seems that the conclusion to be drawn from these decisions is that there is a greater public interest in access to environmental information when compared to access generally under freedom of information. Accordingly, the question of which charges are permitted should be interpreted narrowly so that the objective of making environmental information available as widely as possible can be achieved. Therefore requesters should not be obliged to pay for the processing of a request, should be able to examine information in situ free of charge and should only pay the disbursements incurred by a public authority where copies of requested information is transmitted to them.

Ironically Mr Swords had to pay €150 to the Commissioner to lodge his appeal against a search and retrieval fee of €146.65 proposed by the Department of the Environment. Following the rationale of the Irish and UK decisions it seems unreasonable that the Commissioner should charge a fee for lodging an appeal since an appeal itself can be rightly viewed as a part of the processing of a request and not of supplying environmental information. Indeed very often an appeal to the Commissioner is necessary before any information is supplied.

At the very least it is now uncertain whether the Commissioner is entitled to levy this fee but we must wait until this issue itself is examined in an administrative tribunal or court before it can be resolved.

Search & retrieval fees no longer apply to AIE requests

Following an appeal by Pat Swords, the Commissioner for Environmental Information (detailed here) ruled that the Department of the Environment was not within its rights to charge search and retrieval fees on his request, as this was essentially contrary to the Access to Information on the Environment (AIE) 2007/2011 Regulations. The Department had 8 weeks in which to appeal that decision to the High Court, if they disagreed.

The Department has confirmed to TheStory.ie that they have not pursued an appeal.

The implication is that no public authority within the AIE regime may charge for search and retrieval. The Department has removed references to the previously mentioned €20.95/hour search and retrieval fee, and has advised us that it is in the process of updating guidance to public authorities in this matter.

So a note to members of the public and journalists: public authorities can no longer charge for search and retrieval for AIE requests. However, such fees still apply to FOI requests.

Judge cites NAMA's delay as crucial factor in decision not to grant stay

On Friday the High Court refused to grant a stay to NAMA pending its appeal to the Supreme Court against the February decision of the High Court that NAMA is a public authority and therefore subject to the Access to Information on the Environment Regulations.

The power to grant a stay pending an appeal is a discretionary power and the Court set out the test that should be applied when exercising its discretion. The Court was of the view that a balance of convenience-type test is appropriate whereby once there is an arguable appeal the Court must examine the relative prejudices flowing to various parties as a consequence of its decision to grant or refuse a stay. This test was recently enunciated in Danske Bank t/a National Irish Bank -v- McFadden.

The Court also drew support from Okunade -v- The Minister for Justice, Equality and Law Reform, a 2012 Supreme Court decision which considered how courts should approach interlocutory injunctions in public law matters.

In reaching his decision the judge acknowledged that more than 1,000 days had elapsed since the request was made and was critical of NAMA’s behaviour in refusing to deal with the request by sticking firmly to the narrow issue that it was not a public authority. Despite having the resources and means to do so, NAMA decided it was not a public authority and took no further steps to process the request thereby neutralising the whole request and ensuring the process will take further time and result in further appeal to the Information Commissioner. This elongation was, the court found, a direct result of the unnecessarily narrow approach adopted by NAMA.

According to the judgment:

NAMA decided to dismiss Mr. Sheridan’s 2010 request for information on a threshold issue as to whether or not it was a public authority. No other decision has ever been taken by NAMA on his request even though it could have decided whether or not the information he sought comprised environmental information as defined and whether or not any of the mandatory or discretionary grounds for refusal of information were applicable. Thus, by framing its refusal so narrowly, NAMA have effectively neutralised the whole of Mr. Sheridan’s request and have ensured that the process is likely to take further time and result in further appeals to the Information Commissioner. The elongation of the process for deciding Mr. Sheridan’s request seems to be the direct result of the unnecessarily narrow approach adopted by NAMA in determining the request.

NAMA adduced no evidence to show that the processing of the request would be an unreasonable administrative burden nor that irreparable harm would be done should information be released in circumstances where it transpires that it is not a public authority. Since no information would actually be released the balance of prejudice favoured refusing a stay. Furthermore the judge also was of the view that the rights of third parties were amply protected by the mandatory and discretionary grounds for refusal. As the Court noted:

No substantive argument or fact has been put before me which would persuade me that dealing with Mr. Sheridan’s request will cause an undue burden, either administratively or financially to NAMA. If it were the case that dealing with his request would cause such difficulties, such an argument should have been made in detail and possibly by affidavit evidence.

This judgment is a clear signal that it is incumbent upon public bodies who wish to refuse access to information on the basis that they are not public authorities to deal with all issues arising under the request unless it is administratively burdensome to do so. They will receive little sympathy in the courts should a narrow position lead to significant delays in processing a request for information. It also is a signal that public bodies wishing to avail of discretionary court orders which introduce delays will need to show specific evidence of immediate, irreparable harm before a court will make an order that unreasonably prolongs the processing of a request.

This judgment sets an important precedent in relation to how the courts expect to see requests for environmental information handled by public bodies While the Commissioner for Environmental Information’s procedures did not feature in the judgment it is also certain that this judgment will have to be reflected in her office’s procedures.

While TheStory also made arguments in relation to EU and international law, the Court seemed to be satisfied that it had sufficient authority under national law to refuse a stay. It appears that we will have to wait until another time for further judicial consideration of the application of EU and international law to issues arising under the Aarhus Convention.

NAMA stay judgment

This is the judgment given by Judge Colm Mac Eochaidh on Friday morning in relation to NAMA vs the Commissioner for Environmental Information. In it, he refused to grant NAMA a stay on his February 2013 judgment that NAMA was a public authority under the Access to Information on the Environment Regulations 2007. He made the judgment following this blog’s submission to the court, both orally and in writing. The Commissioner took a neutral position on the stay.

In light of this judgment, NAMA sought and was granted a two week continuation of the stay to consider its position. It expires on May 3.

We believe this to be generally a very significant judgment for access to information, and for the Regulations. Fred will have a legal analysis later tonight.

Observations on the NAMA AIE judicial review

The experience in court yesterday highlights the unfairness of the judicial review procedure in relation to High Court appeals by public authorities under the Access to Information on the Environment Regulations.

Gavin as the requester had no automatic right to be a notice party to the proceedings even though his right of access to information formed the subject matter and the decision of the Court to grant of a stay could affect that right adversely.

Luckily the judge asked that Gavin be invited to address the court. He was, in fact, the only party to put arguments against a stay being granted since the Commissioner has decided to remain neutral on this issue.

We already know that in late 2011 the Commissioner was on the point of consenting to an application by NAMA to ask the court to find in its favour and thereby ending the appeal and reversing the Commissioner’s decision. Without being a notice party we do not know why or in what circumstances the Commissioner continued to fight the appeal. Crucially, we did not have the right to make submissions on the issue but rather had to rely on the discretion of the Commissioner to inform us of the position.

It goes without saying that this situation is fundamentally unfair.

Indeed, Article 9 of the Aarhus Convention guarantees applicants a fair, equitable, timely and not prohibitively expensive judicial review process. However serious question marks must be raised concerning how this provision is implemented in Ireland since there is no automatic right for an applicant to be a notice party to judicial review proceedings initiated by a public authority against an administrative decision.

It is not like the State has no experience of this issue. Ireland has already lost a case in similar circumstances when the European Commission took Ireland to the ECJ concerning the non-implementation of the “not prohibitively costly” element of the review obligations. The ECJ found that discretionary practices (in relation to costs) cannot be considered to be a valid implementation of an obligation. Yet here we are today and a requester for environmental information has no automatic right to participate in the appeal procedure initiated by a public authority.

This ECJ decision led to the enactment of Part 2 of the Environment (Miscellaneous Provisions) Act 2011 which means that now costs may not be awarded against plaintiffs in certain judicial review cases relating to environmental law unless there are exceptional circumstances.

Leaving aside costs, the NAMA -v- Commissioner for Environmental Information case has exposed further flaws in the procedures for environmental judicial review where a public authority is the appellant. With a minimum 7 year delay for a final appeal in the Supreme Court the procedures clearly lack the timeliness required under the Aarhus Convention and with no automatic right to be a notice party a fundamental lack of fairness is built in to the structure of the current review procedure.

The High Court, NAMA and a stay

This morning we attended the High Court after being invited by Judge Colm Mac Eochaidh to make a submission to the court in relation to NAMA seeking a stay on his judgment pending an appeal to the Supreme Court. This is the submission I read to the Court. Brian Murray SC, for NAMA, made a number of points about why NAMA had not behaved tactically, and was simply seeking to exercise its right to appeal. They also appeared concerned that if a stay was not granted, they would be subject to a flood of requests for information.

At the end, Judge Mac Eochaidh asked if I wish to respond – and I did on one specific point first – that the Regulations require a public authority to assist a requester and NAMA had not done so (having made an earlier point RE the process of reviewing and releasing information), and an additional final point – that NAMA will be subject to information requests, come what may, given that they will be subject to Freedom of Information Act according to the draft amendment published in 2012.

Overall the point we were making, and which Mr Murray did not address, is that the State has obligations under international treaties, under the Convention, under European law and under Irish law that citizens have timely processes in judicial and access to information procedures. These obligations are not voluntary – that’s why they’re called obligations. The rights of all Irish citizens are being infringed when processes such as this take this long.

Submission read in Court on April 17:

NAMA seeks stay pending Supreme Court appeal

Last week we received word that NAMA intends to seek a continuation of the stay on the judgment of the High Court in relation to National Asset Management Agency -v- Commissioner for Environmental Information [2013] IEHC 86 (that “and includes” means “and includes”), pending an appeal to the Supreme Court.

The continuation of the stay would prevent the judgment from taking effect. This would mean that NAMA would not be subject to AIE requests in the interim.

The judge in the case, Judge Colm Mac Eochaidh, invited myself as the requester, to make a submission to the court, as he was concerned about the impact on my rights in the
event that a stay is put in place.

Appeals to the Supreme Court are taking in the region of four years to be heard in the absence of an application for priority. And even if the case is deemed a priority it could still take at least a year for the matter to be dealt with on appeal.

Counsel for NAMA indicated that it did not intend to make written submissions to the court in relation to the application, but intended to rely on certain authorities (such as Danske Bank v Niall McFadden).

We have formulated a written submission to the Court and intend to make an oral submission to the court in the morning, April 17. It is due to be heard at 10.30am.

We will update as we get news, and publish our submission to the Court tomorrow. You can follow us on Twitter @gavinsblog and @fplogue.

Tomorrow it will be 1,169 days since our AIE request was sent to NAMA. It is estimated that thus far the case has cost the taxpayer €121,350, and any Supreme Court appeal will obviously increase that figure.

Commissioner decision on AIE search and retrieval fees

Access to Information on the Environment (AIE) specialist and campaigner Pat Swords was kind enough to share a recent decision of the Commissioner for Environmental Information with TheStory.ie The decision is an important one, and relates to how search and retrieval fees can be used (or not used) in relation to AIE requests (AIE was the method we used to get NAMA to be a public authority subject to AIE requests).

We were particularly interested by this paragraph:

So can any public authority charge search and retrieval for AIE requests from now on? It would certainly seem not – and would surely require new guidance to be issed to all public authorities into how they handle such requests.

The Commissioner points out in her decision that the AIE regulations (2007/2011) say that a public authority cannot charge citizens for inspecting environmental information in situ (at the premises of the authority, see Section 15 1) c) of the Regulations). She argues that if this is the case, then it would be inconsistent and unreasonable to ask citizens to pay a “search and retrieval” fee.

In other words just because the requester is remote from the premises, doesn’t mean their rights of access should be diminished by a fee being charged for search and retrieving information. Only fees for reproduction and so on (photocopying) could be charged.

This is the full decision with thanks to Pat: