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.


Micheal Martin's letter to Mario Draghi

Fianna Fail leader Micheal Martin wrote to ECB president Mario Draghi in January asking for debt relief on the Anglo promissory notes. In a letter released to thestory.ie from the ECB, Martin stressed the importance of Ireland obtaining a deal on the debt, stating:

The people of Ireland fully understand the legal constraints faced by you as President of the European Central Bank in relation to monetary financing of government. In a more flexible system most or all of this debt should simply be absorbed permanently. However, there is no clear legal or economic impediment to a restructuring of the notes on such a basis as to significantly reduce their impact. A longer term and lower cost would make a major contribution to Ireland’s recovery.

Mr President, there are many issues concerning Europe and recovery which divide parties in our country — this is not one of them. You can be assured that the arguments which you hear from Ireland are backed by a broad and deep consensus.

The ECB refused access to other documents relating to the IBRC bill on a number of grounds including:

…some of the documents that you requested contain internal and preparatory views that are also protected under Article 4(3) of Decision (a document containing opinions for internal use as part of deliberations and preliminary consultations within the ECB or with NCBS). The ECB considers that disclosing these documents would undermine the possibility for ECB staff to freely submit uncensored advice to the ECB’s decision-making bodies and that it would thus limit the ECB’s “space to think”. It is therefore in the public interest to protect internal consultations and deliberations. Disclosing the documents would also undermine the possibility of an effective, informal and confidential exchange of views with the Central Bank of Ireland, which is part of the Eurosystem. On the basis of the content of these documents, the ECB notes that there is no overriding public interest that could justify their disclosure, and it is not possible to grant partial access to them without undermining the interest protected.

Full documents:

The case against David Drumm

Ever wonder where stories like this originate? Says Simon Carswell:

From September 2008, as the Irish banking crisis deteriorated, Ms Drumm opened 15 accounts in eight banks in her sole name. Cash was transferred to the couple’s joint accounts or her own accounts, the trustee has claimed.

Mr Drumm has yet to respond to a litany of allegations made by the trustee and Anglo Irish Bank in the bankruptcy proceedings.

Ms Dwyer said in a new complaint filed in the US court that she intends to sell Mr Drumm’s home in the Boston suburb of Wellesley, the property at Stage Neck Road in Cape Cod purchased for $4.2 million and his former home in the Abington estate in Malahide.

She claimed that Ms Drumm gave her husband “a fictitious loan” of $210,000 which was sourced from his earnings. The loan was “a sham transaction” to invest in Mr Drumm’s new business in the US to qualify for a temporary visa, and the funds were used as “a personal piggybank” to spend on his personal finances and “to disguise and conceal the transfers made to Mrs Drumm”.

But how about reading the original document? The document that outlines in extraordinary detail the transfers, amounts, the timeline, the names, the dates – words and phrases like “insider loans”, “improper”, “concealed”, “surreptitious negotiation” and “fraudulently” – all alleged by the bankruptcy official.

I’ve gone and bought the particular document, among others: