18 May 2021
MySociety's 'Reforming FOI' report, published on 28 April, contains a number of recommendations to protect and enhance FOI rights across the UK. While the report principally calls for changes to the UK FOI Act - many of which would more closely align UK FOI with Scottish law and practice - the report also recommends a change in practice for the handling of environmental information requests in Scotland.
Specifically, the report calls for the Commissioner to amend his guidance on the charging of fees under the Environmental Information (Scotland) Regulations 2004 to discourage authorities from charging fees for EIR requests where the cost falls below the upper FOI cost limit of £600, in order to more closely align charging practice between Scotland's FOI and EIR regimes.
The recommendation is informed by a 2019 decision of the UK Information Commissioner (the ICO, who regulates FOI in England and Wales, and data protection across the UK), which found that a charge made under the (UK) EIRs was unreasonable. In reaching this decision, the ICO considered the charge against an equivalent charge that might be made under the (UK) FOI Act.
When considering charges for environmental information, however, the Scottish Information Commissioner is bound by regulation 8 of the (Scottish) EIRs, which enables authorities to charge a fee which doesn't exceed a 'reasonable amount', and doesn't exceed the cost of producing the information. This ultimately has to be the criteria against which we assess any individual EIR fee, and charges must therefore be considered on a case-by-case basis whenever a relevant appeal is received.
It's hopefully reassuring to note, however, that such appeals are rare, with only two of the Scottish Commissioner's 2020 decisions relating to EIR fees. Data from our statistics portal also shows that charges for environmental information are rare across Scotland, with fees notices being issued in relation to fewer than 3% of the EIR requests reported during 2020.
The typical experience for someone requesting environmental information in Scotland is that, like most FOI requests, the request will be responded to free of charge. But if you do receive a fees notice and think the fee charged is unreasonable or excessive, remember your right of appeal.