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Annual Report 2008 - Text
Open Focus & Sligo County Council (Case CEI/07/06)
Whether the charging of a fee was in accordance with article 5 of Directive 2003/4/EU as implemented by article 15 of the Access to Information on the Environment Regulations 2007 (S.I. No. 133 of 2007)
Background
In August 2007, Open Focus (a Group of concerned citizens) requested environmental information from Sligo County Council about proposed wastewater and sewage treatment plants in County Sligo.
The Council wrote to Open Focus saying that "the charge for making this information available is €285" and that "on receipt of this fee, your request will receive further attention". Open Focus asked for the charge to be justified and for details of how it was computed. This information was provided by the Council. Open Focus applied for an internal review of the decision to charge €285. It contended that the amount was excessive and beyond that allowed for in the Directive and the Regulations.
The Council failed to deal with this internal review application within the statutory period of one month and Open Focus appealed to my Office against the decision. My Office accepted the appeal having regard to article 11(5)(c) of the Regulations which provides that a reference to a request refused includes, for the purposes of the right of appeal to my Office, a request "that has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive (2003/4/EC) (including the ground that the amount of the fee charged under article 15(1) is excessive)".
The Information
The information identified by the Council as being covered by the request comprised its response to questions posed by Open Focus together with a folder of documents, including maps, relating to the Enniscrone and Sligo Wastewater Treatment Plants.
The Applicant's position
Open Focus made submissions arguing that information about water and sewage schemes should be made available in the public interest. It said that the charging of a fee acts as a barrier to public participation in matters of environmental importance.
The Council's position
The Council rejected the views put to it by my Investigator that the Regulations and the Directive required it to provide a list of fees and the basis for their calculation before any charge could be levied. The Council considered that it was reasonable that the schedule of charges be made available to the applicant on request, which is what it did in this case.
Appeal Decision
My conclusion was that the Council's charging of a fee in this case did not comply with the requirements of article 15 of the Regulations. This is because the Council failed to make available to the public details of its charges, how they are calculated and the circumstances in which they will be waived. Given that the requirement to publish such information on charges is prefaced in the Regulations by the phrase "Where a public authority charges a fee..." [and in the Directive by the phrase "Where charges are made..."], I took the view that a charge should not have been made in this case where no such information was published. I also commented in my decision that if it were necessary to make a decision on the point, I am clear that such decision would be that the fee sought by the Council in this case was not "reasonable having regard to the Directive".
I annulled the Council's decision and directed it to release the information to Open Focus without charge.
