Property Searches - new guidance published
The Association of Independent Personal Search Agents (IPSA) reports that the UK Information Commissioner (ICO) has published a Guidance note on Property Searches.
The on 16 July 2009 Version 1 (7 pages) states:
Environmental Information Regulations
“The Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) give rights of public access to information held by public authorities. This is part of a series of guidance notes to help public authorities understand their obligations and to promote good practice.
This guidance provides advice to local authorities on how they should respond to requests made for local property search information, what the relationship is between the EIR and the Local Authorities (England)(Charges for Property Searches) Regulations 2008 (the CPSR), and in particular whether the information provided in response constitutes environmental information as defined in the EIR.
This guidance applies equally to the Local Authorities (Charges for Property Searches)(Wales) Regulations 2009 which do not differ materially from the CPSR.
Overview
- The majority of the information provided by local authorities in response to property search enquiries is likely to be environmental information as defined by the EIR.
- The charging provisions in the CPSR do not apply to environmental information.
- Under the EIR a public authority should accept an applicant’s request to inspect the information.
- Environmental information that is inspected by the applicant cannot be charged for.
- Public authorities cannot use the publication scheme provisions of the FOIA to charge for environmental information contained in property search records.
- Information that is not environmental should be considered under the FOIA. In such cases, the CPSR can form the basis for any charging.
Background
Local authorities have traditionally made charges for providing property search information, but there has been a lack of consistency in this area. The CPSR were introduced in order to provide a framework within which local authorities could make charges for property search services, specifically for granting access to property records held by the local authority and for answering enquiries about a property. In essence, they permit charging to be made on a cost recovery basis.
Much of the demand for these services is in relation to Home Information Packs (HIPs). A HIP is required for every residential property that is offered for sale on the open market. An important component of the HIP is a property search report. The reports are compiled from information provided by a local authority in relation to various standard enquiries. These enquiries are prescribed in the Home Information Pack (No.2) Regulations 2007 (the HIP Regulations).
Interaction between the CPSR and the EIR
The charging provisions of the CPSR do not apply where either:
- the local authority is able to charge for access to property records under another enactment, or
- the local authority has to provide access free of charge under the provisions of another enactment.
The EIR give a public authority the discretion to impose a reasonable charge for making environmental information available. They also set out circumstances under which no charge can be made.
The CPSR were enacted in December 2008, nearly four years after the EIR came into force, and so it is likely that they were drafted in recognition of the access provisions contained in the EIR. This position also acknowledges the primacy of EU legislation, whereby European law, such as the EIR, takes precedence over domestic law. (Highlight added by news Editor)
Consequently, if the property records comprise environmental information as defined by regulation 2 of the EIR, the CPSR cannot be used as the basis for charging and public authorities must adopt the charging provisions in the EIR.”
“Other considerations
- It is possible that property search records may contain the personal information of third parties, in particular when they are viewed ‘in-situ’, but also, for example, when obtaining full copies of the records. Public authorities should, therefore, be aware of their obligations under the Data Protection Act 1998. Please see our guidance Determining what is personal data.
- The Re-use of Public Sector Information Regulations 2005 allow public authorities, subject to compliance with certain requirements, to impose a separate charge for re-use of information. An authority would need to consider whether these requirements are met in the context of the property search enquiries. The Information Commissioner is unable to provide guidance on these regulations and authorities are advised to contact the Office of Public Sector Information who are responsible for their administration.”
Charges for Property Search Services
Competition Authorities - Berlin
Pricing - Impact Analysis in the Context of the PSI Directive - Helsinki
Pricing - Impact Analysis in the Context of the PSI Directive - London
Pricing - Impact Analysis in the Context of the PSI Directive - Athens
Local Authority Property Search Services - Costing and Charging Guidance
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