Funding the Environmental Information (Scotland) Regulations 2004: Fees in Practice

Last month the research team posted on the power granted to public authorities to levy fees for disclosing environmental information under the Environmental Information (Scotland) Regulations 2004 (EI(S)R). The role of costs in guaranteeing the right of access to environmental information is significant, as a balance must be struck between charging enough to cover the costs of processing requests for environmental information and ensuring that environmental information is affordable to access. However, while these fees are seen to be a means of funding the operation of the EI(S)R regime, in practice public authorities generally do not levy fees to raise revenue. This is significant, because not only does it demonstrate an inability for fees to fund the EI(S)R regime but it also reveals a disconnect between some public authorities’ fee schedules and their actual implementation.

In charging for environmental information, different public authorities have adopted different fee schedules and charging practices. These range from schedules which do not charge for environmental information (Scottish National Heritage), schedules that have adopted the fee rate of the Freedom of Information (Scotland) Act 2002 (Aberdeen City Council) and schedules that have imposed higher fees for environmental information than for other types of information (Dundee City CouncilCity of Edinburgh Council and Scottish Water).[1]

These fee schedules can give rise to various assumptions on the levying of fees for administration. One such assumption is that some public authorities seek to levy fees for every request submitted under the EI(S)R in order to recoup its costs (with some obvious exceptions like Scottish Natural Heritage). However, statistics gathered by the Scottish Information Commissioner in 2017 indicate that this is not the case in practice. Aberdeen City Council, for example, despite its policy of levying fees on requests that cost over £100 and receiving 499 requests that were chargeable, issued 0 fee notices over the course of 2017.

This pattern of not fully utilising the fee levying powers granted under the EI(S)R can also be identified in public authorities which have a policy of not waiving fees and of imposing higher fees for environmental information: Dundee City Council levied fees on only 10.7% of those requesting access to environmental information; City of Edinburgh Council on 2.5% of requesters and Scottish Water on only 0.4% of requesters. These numbers of fee notices issues is significant, because it indicates that public authorities are using their powers to levy fees on only a minority of cases, regardless of their waiver policy. In these cases, an argument can be made for altering these fee schedules to reflect how these public authorities charge for environmental information in practice: so that the potential requesters know how frequently they make information available without any fees.

The Scottish Information Commissioner’s statistics also indicate that only a small number of requesters actually pay the fees that the public authority levies for disclosing environmental information. Out of the thirty eight fee notices issued by Dundee City Council only four of them resulted in fees being paid: a rate of 10.5%. These statistics are lower still for City of Edinburgh Council (8.3%) and Scottish Water (0%), suggesting that fees are unlikely to act as a sufficient source of revenue to fund the processing requests for environmental information for public authorities.

Public authorities face a difficult challenge in balancing the need to keep environmental information affordable with the financial costs of processing requests for environmental information. However, within this challenge there is an opportunity to further utilise proactively disseminated environmental information as a means of reducing the number, and therefore the costs, of processing requests for environmental information. This proposal will be further explored in the next post on this topic, but it has the potential of aiding public authorities in reducing the costs associated with guaranteeing the right of access to environmental information.

Sean Whittaker

[1]These public authorities were selected due to their identifiable fee schedules for environmental information and because the amount of requests they received in 2017 was above the median number of requests received by Scottish public authorities.

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