Funding the Environmental Information (Scotland) Regulations 2004: Fees and Fee Waivers

The public are entitled to request access to environmental information held by public authorities, but charges can be levied where responding to a request and disclosing the information involves costs. Public authorities in Scotland have implemented markedly different rules on charging for the disclosure of environmental information on request under the Environmental Information (Scotland) Regulations 2004. This is problematic, as people making requests for information from some public authorities will be charged more than those requesting information from others.

The current environmental information regime allows public authorities to charge fees when environmental information is disclosed in response to a request for that information. These fees must be “reasonable”, and the public authority must also publish these fee rates, and instances where fees may be waived, in a publicly available fee schedule. These provisions are vague however, and do not specify when fee waivers must be provided or how public authorities are meant to operate both environmental and general information regimes in parallel with each other.

In Scotland there are a wide range of different approaches to charging for the disclosure of environmental information. Some public authorities, such as Scottish Natural Heritage, do not charge for the disclosure of any environmental information, whereas other authorities, such as Aberdeen City Council, waive fees that are £100 or less and only charge 10% of the costs if they are over £100, reflecting the fee rates under general freedom of information legislation. Some public authorities, such as Dundee City Council, City of Edinburgh Council and Scottish Water, impose higher charges for environmental information than they do for requests under the Freedom of Information (Scotland) Act, creating a “premium charge” for environmental information.

This issue arises from the competing interests of public authorities and the public in how requests for environmental information are processed. While public authorities are obliged to respond to requests for environmental information, processing such requests costs, on average, £308 per request.[1] Understandably, public authorities want to recoup some of these costs. However, the public do not want to pay high fees for environmental information which is held on their behalf.

At this early stage of our project, it is difficult to suggest that any particular fee regime is better at balancing the interests of the public authority and the public. While it may be tempting to approve of public authorities which charge less for the disclosure of environmental information, those which charge higher fees may be better able to recoup the losses incurred in processing requests. Also, all of these different approaches are allowable under the Environmental (Information) Scotland Regulations 2004, so these public authorities are not in breach of their legal obligations.

However, these differences in how fees are charged can create inequalities between geographic areas, where residents in one area will face higher fees to access environmental information from their Council compared to residents in another area in Scotland. It also raises questions on what is the best approach to charging for environmental information. We will explore these questions more fully as our research progresses.

Sean Whittaker

[1] A Condliffe, “Application Fees – The Arguments For and Against” (2012) 8(6) Freedom of Information 10

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