Charging high fees for public information, such as court lists, is double-charging the taxpayer

Protests have greeted the decision by the Courts Service (HMCS) to impose charges for reproducing the decision of the previous day’s trials in magistrates’ courts. It now costs £5 for the use of the first ten pages and 50p per page thereafter.

The objections are easy to understand. HMCS is funded by the taxpayer, so why should it charge at all when in the US, for example, such information is free or has a minimal charge?

The whole issue of the commercial use of public information was exhaustively analysed by the Office of Fair Trading (OFT) in 2006, although the OFT failed to examine the possibility of not charging for such information because of implications for the Exchequer.

It found that natural monopolies in the public sector such as the HMCS cost the economy hundreds of millions a year in ‘hidden information markets’. This figure did not include the unquantifiable loss for society when no information is disseminated at all because of its cost if hard-pressed newspapers choose not to pay.

Can nothing be done? An EU law requires charges to be on a ‘cost plus reasonable return’ basis, but the poorly funded Office of Public Sector Information (OPSI), which applies the regulations under a memorandum of understanding with the OFT, has no enforcement powers.

Legal obstacles

Where a breach of the competition rules is alleged, then OPSI can hand the matter to the OFT. But even if the OFT is bold enough to use its resources (provided by the government) to investigate alleged overcharging by a government department, there are significant legal obstacles to overcome.

Is HMCS an ‘undertaking’, to whom the rules of competition apply? Is it exempt from the rules because it carries out a function of general economic interest? If the better view is that these obstacles should be overcome, the difficult one is proving that the charges are an abuse of the natural monopoly.

Economic value

This is because the competition authorities, led by the EU, are moving away from the ‘cost plus’ analysis and towards an approach based exclusively on economic value.

So if someone pays a very high price for commercial information, it is because it is worth it.

Focusing on the cost of the whole activity may be appropriate in information markets where the cost of providing an extra email will be minimal in itself and even a small charge could produce an exorbitant margin. But is the whole activity merely the compilation of the list, or is it something wider?

In the racing data case, the Court of Appeal held that, where licence revenues are used to finance the whole activity (in that case horse racing), high licence fees are justified. HMCS could easily use this argument to justify its charging policy, saying that it helped keep down the cost of administering justice.

This legally valid argument is an absurdity where a natural monopoly is funded by the taxpayer. However, public and private enterprises are subject to the same competition laws. So the argument is a powerful one.

This state of affairs could change. EU law could be amended to give OPSI enforcement powers to ensure that no charges are imposed beyond that of compilation plus a reasonable return; charging what the market will bear would be prohibited. It is most unlikely that member states would allow such a change or introduce such legislation.

Alternatively, someone might challenge Crown copyright as an infringement of freedom of information under the Human Rights Act. It is a long shot, but the odds must be better than under a competition law that is so reliant on public enforcement and is based on the EU model. This actually favours public sector monopolies by according them the same treatment as dominant companies in the private sector whose position is more open to challenge.