Dear Mr. Keenan,
Apologies for coming back to you on this with some delay.
It appears that the issue you described in your email might fall under article 4 of the Aarhus Convention to which UK is a Party.
The explanations given to you by the ICO Customer Service Officer concerning
your rights under the Environmental Information Regulations appear to be compatible
with the requirements of the Convention. Under article 4, paragraph 1(b), of the Convention,
the relevant public authority has to make the requested environmental information
available in the form requested unless it is reasonable to make it available in another form
(for which reasons should be provided) or unless the information is already publicly available
in another form. Under article 4, paragraph 3 (b), a request may be refused if it is manifestly
unreasonable or formulated in too general a manner. This latter stipulation is of course
subject to interpretation by national authorities and ultimately by courts.
Under article 4, paragraph 8, of the Convention, public authorities may impose reasonable charges for supplying information. Such charges have to be based on transparent schedules of charges. In other words, a public authority can decide to ask the requestor to pay for, for example, the time spent by their staff on copying the information and other costs associated with the copying.
I also appears that, according to the advice you received from the ICO Customer Service, you also have a right to examine the information on-site (based on the national EIR).
However, even in cases where domestic regulations and institutional arrangements fulfil the requirements of the Convention, there is always a room for a human error. Such error does not necessarily in itself constitute a breach of Party's obligations under the treaty, provided there are available and functional domestic review and remedy procedures in place.
The Convention has a compliance review mechanism (www.unece.org/env/pp/compliance.htm). A member of the public can bring a communication alleging non-compliance by a Party with certain provisions of the Convention. However, when determining whether or not a communication is preliminarily admissible, the Compliance Committee will very carefully examine whether any domestic remedies are available and how these have been used.
I understand the frustration that you feel from having spent a long time obtaining particualr information. I might suggest, however, that if your goal is to obtain specific information as soon as possible, you may wish to use the interpretation of the EIR received from the ICO in order to request the relevant information again. Because the deadline to provide environmental information is one month, this might be the most efficient way to proceed. If, on the other hand, you consider that you have been originally given an incorrect interpretation of the UK regulations by the ICO, that the review carried out by it was therefore erroneous, and that there is some sort of institutional problem that might result it possible future errors, you may wish to appeal the results to the superior instance (e.g. the head of the agency) or bring the matter before the court. You could also take both steps simultaneously.
In short, I would suggest to make use of available domestic procedures before deciding whether or not to make a communication to the Compliance Committee. Should you, however, wish to proceed with making a communication to the Compliance Committee at this stage, you can notify us of this and we will forward it to the Committee. Having gone though the information provided by you in your email, I believe that its presentation and the supporting documentation are sufficient for the Committee to proceed with review of its admissibility.
Or, if you wish us to do so, we could also forward your message for information to the UK National Focal Point for the Convention at the UK Department of Environment, Food and Rural Affairs (DEFRA). We would do so, however, only with your explicit agreement.
I would also like to make it clear that the above analysis is my personal view and does not represent views of the Convention's secretariat or those of the Compliance Committee.
United Nations Economic Commission for Europe
Environment, Housing and Land Management Division
Palais des Nations, Bureau 321
CH-1211 Geneva 10
tel: +41 22 9172650
fax: +41 22 9170107