Chapter 3: Decisions

In this chapter, I provide summaries of four decisions made in 2012. The full text of these decisions can be found on my website at www.ocei.gov.ie.

Mr. Tony Lowes, Friends of the Irish Environment, and the Office of the Attorney General (AGO) – Decision of 3 May 2012 - Case CEI/09/0014

Whether the AGO was justified in refusing access to all records held in relation to two cases brought against Ireland by the European Commission

This is my first decision applying the provisions of Article 9(2)(a) of the Regulations. The request, which was made on 21 July 2009, was for access to all records held, including but not limited to Letters of Formal Notice, Reasoned Opinions, advice sought or received [including all legal advice], minutes of meetings, and all internal and external communications by email or otherwise, in relation to two cases involving infringement proceedings brought against Ireland by the European Commission [Case C-392/96 and Case C-294/03]. The AGO took no action on the request within the one-month deadline specified in Article 7 of the Regulations. On internal review, however, the AGO refused the request in reference to Article 6(1)(d) of the Regulations, stating that the request was not specifically directed to environmental information and therefore fell outside the scope of the Regulations.

In my decision, I noted that Case C-392/96 and Case C-294/03 were two related actions concerning, in essence, the adequacy of required legislative measures designed to protect certain environmental elements referred to in paragraph (a). In light of the subject matter of the appellant’s request, and based on my examination of a sample of records that had been made available to my Office for the purposes of my review, I considered it likely that most of the records relevant to the request would contain environmental information within the meaning of Article 3(1)(c) of the environment information definition set out in the Regulations.

However, Article 9(2)(a) of the Regulations allows a public authority to refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. In this case, the proceedings referred to in the request spanned a period of over a decade and it was therefore to be expected that the relevant files held by the AGO would include a voluminous amount of correspondence, legal advice, and legislative material. Moreover, the request did not seek access to particular items of environmental information relevant to the legislative measures underlying Cases C-392/96 and C-294/03, but rather was directed at all records relating to the proceedings. On the face of it, therefore, the request seemed to be more about how the AGO dealt with the infringement proceedings on behalf of the State than it was about access to environmental information per se. In the circumstances, I found that the request was manifestly unreasonable by its very nature. Given the broad nature of the request and the large number of files involved, I also accepted that processing the request would impose an unreasonable burden on staff resources. I was therefore satisfied that the AGO’s decision to refuse the request was justified under Article 9(2)(a) of the Regulations, and I affirmed the decision accordingly.

Mr. Gavin Sheridan and Central Bank of Ireland (the Bank) – Decision of 26 March 2012 - Case CEI/11/0001

Whether the Bank was justified in refusing access to certain items of information relating to mileage claims on the ground that the information concerned was not environmental information within the meaning of the Regulations

In a request originally dated 30 November 2010 and subsequently revised on 13 January 2012, the applicant sought access to a “datadump” of mileage claims as recorded by the Bank during a certain period. The Bank refused the request on the basis that the requested information was not environmental information within the meaning of the Regulations. Following the applicant’s appeal to my Office, the Bank produced a travel spreadsheet with the relevant information for the purposes of my review. The Bank also agreed to release the information appearing in the columns under the headings of Mode of Transport, KM per trip, Date Outward, and Date Return. The question before me was whether the remainder of the information in the spreadsheet relating to the mileage claims was environmental information within the meaning of the Regulations.

I noted that there are limits to the scope of the AIE regime. Having regard to the comments of the European Court of Justice (ECJ) in Glawischnig v. Bundesminister für soziale Sicherheit und Generationen, Case-316/01 (12 June 2003) in relation to the definition of environmental information, I found that, in order for information to qualify as “environmental information” for purposes of the Regulations, it is necessary for the information to fall within one of the six categories set out in the definition in Article 3(1).

In relation to the question of “activities” under paragraph (c) of the definition, I noted that such activities only come within the scope of the definition by virtue of their direct or indirect link to an impact on the elements of the environment. In the circumstances, I found that information on an activity must, at a minimum, reflect the link to the environmental impact of the activity in order to fall within the ambit of paragraph (c); it is not sufficient for information simply to be related to the activity. To put it another way, there must be a sufficient connection between the information concerned and an aspect of the activity that has an effect on the environmental elements and factors referred to in paragraphs (a) and (b) of the definition.

With some reservation, I accepted that official travel by car is an activity within ambit of paragraph (c) of the definition. However, I determined that the remaining items of information that were at issue, including destination, motor expenses, and mileage amounts, do not have a sufficient connection with the environmental impact of the activity of travel by car to meet the definition of “environmental information” under the AIE Regulations. I found in the circumstances that the Bank’s decision to refuse the appellant’s request for information relating to mileage claims, apart from the information which had already been released, was justified and should be affirmed.

Ms. Rita Canney and Waterford City Council (the City Council) – Decision of 7 June 2012 - CEI/11/0009

Whether the City Council was justified in refusing access to the original Tree Protection Order (TPO) file relating to trees on the Glanbia site in Waterford

In a request dated 9 February 2011, the applicant sought access to all documentation pertaining to TPO PD 271/76, a file relating to trees on lands associated with the Glanbia premises, (Glenville), Maypark Lane, Waterford. No written decision was made by the City Council within the relevant time limits set out in the Regulations. Belatedly, however, on 16 May 2011, the City Council issued a statement explaining that some information relating to TPO PD 271/76 had been located and was available on file in the Environmental Services and Planning Office, but that the original documentation relating to the TPO could not be found. The applicant appealed to my Office against the City Council’s decision on 10 June 2011.

Article 7(5) of the Regulations is the relevant provision that applies where the information requested is not held by or for the public authority concerned. In this case, I explained that where a public authority effectively seeks to refuse a request for environmental information on the basis of Article 7(5), I must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the relevant circumstances. Moreover, I noted that, in determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply.

The City Council provided a detailed explanation of its efforts to locate the original TPO PD 271/76 file, which admittedly should have been transferred with other 1976 files to its Records Centre from Waterford County Council following a boundary extension that took place in 1980. The City Council also presented supporting documentation to show that the file was marked as missing on the County Council’s records system and was not included in the transfer sheet when the 1976 files were transferred to the City Council Records Centre. Having regard to the relevant submissions, the age of the file in question, and date of the transfer of records from the County Council to the City Council following the boundary extension in 1980, I was satisfied that the City Council had fulfilled its obligations under Article 7 of the AIE Regulations with respect to the applicant’s request for documentation pertaining to TPO PD 271/76 and that Article 7(5) applied.

I observed, however, that Article 5 of the Regulations imposes certain requirements on public authorities that are designed to facilitate access to environmental information. Although I have no enforcement powers in relation to Article 5 of the Regulations, I noted that it is undoubtedly the case that compliance with its requirements would involve the implementation of organisational systems and efficiencies that ultimately would reduce the resources required of individual staff members to search for and retrieve environmental information. I further noted that, if the relevant environmental information were made available on the public authority’s website, this could obviate the need for a formal access request in the first instance. Therefore, I considered it appropriate to urge public authorities, such as the City Council, to have due regard to the requirements of Article 5 not only to facilitate access to environmental information, but also to reduce the administrative burden that can otherwise ensue.

Ms. Rita Canney and Waterford City Council (the City Council) – Decision of 23 October 2012 - CEI/10/0015

Whether the City Council was justified in refusing access to further relevant records relating to the Greening of Waterford Study and Report

In a request dated 13 April 2010, the appellant sought access to all information, whether in hard or soft copy format, relating to the Greening of Waterford Study and Report, excepting copies of the final report and previous drafts already in her possession. The City Council carried out searches for the relevant records and made them available for viewing at its offices, in compliance with the terms of her request. The adequacy of the searches carried out was not ultimately a matter of serious dispute. The problem that arose, however, was due to the fact that the software used by the City Council for storing the soft copy records was “quite specialised” and thus difficult for an untrained person to avail of.

During the course of my review, arrangements were made for the appellant to access the relevant soft copy files at the City Council’s offices. The records that were supposed to be made thus available to the appellant included (1) the large-scale maps of “Locally Sensitive Sites” and (2) maps of other locally significant habitats referenced in the Greening Report. A member of staff was present during the appellant’s visit to the offices in order to assist her with accessing the files. Evidently, however, despite the staff member’s best efforts, the visit was not a success because of difficulties encountered in locating and assembling the information sought. It was not disputed that the difficulties were due to the specialised nature of the software needed to view the information concerned.

Thus, the appellant had been granted access to the soft copy records held by the City Council relating to the Greening of Waterford project, as she had requested, but the form of access did not meet her expectations. Moreover, because of the difficulties encountered with the software, it remained unclear whether all of the maps that the appellant considered should exist were actually held by the Council or not. This situation was understandably frustrating for the appellant, particularly given the apparent importance of the maps for the conservation of Waterford City’s wetlands.

I noted that the overall purpose of the AIE regime is to contribute to a better environment by increasing public access to environmental information and thereby achieve more effective public participation in environmental decision-making. The failure by a public authority to maintain environmental information in a manner that is readily reproducible and accessible by the public would obviously tend to undermine this purpose, which is why it is inconsistent with the requirements of Article 5 of the Regulations, as amended. I further noted, however, that I have no enforcement powers in relation to Article 5 of the Regulations. Therefore, while the City Council’s grant of access to the soft copy records held by it in this case could not be said to be truly satisfactory from an environmental perspective, I simply was not in a position to require the City Council to produce readily accessible maps where such maps were not already held by or on behalf of the City Council. In the circumstances, I concluded that the City Council’s effective decision to refuse the appellant’s request for further records relevant to her request was justified under Article 7(5) of the Regulations.