Annual Report 2013

Part I
Information Commissioner

Part II
Commissioner for
Environmental Information

Appendices

download annual report pdfDownload PDF

Chapter 2: Decisions

Table of Contents

In this chapter, I report on the decisions made in 2013. The full text of these decisions can be found on my website at www.ocei.gov.ie.

Case CEI/11/0007, Mr. Pat Swords and Department of Environment, Community and Local Government (the Department) – Decision of 20 February 2013

Whether the Department was justified in charging a fee for the costs involved in searching for and retrieving the information requested

The Department proposed to charge a search and retrieval fee of €146.65 for processing the applicant’s request for records “relating to public participation and the development of policy and legislation”. The former Commissioner, Ms. Emily O’Reilly, found that it is neither permissible, nor is it reasonable having regard to the Directive, for a public authority to impose search and retrieval fees for the work involved in processing an AIE request. She observed that such work is not part of the supply of information for which it is permissible to charge a fee; nor is charging for search and retrieval compatible with the prohibition on charges for the examination in situ of information requested. She considered that allowing for such a charge would also run contrary to the purpose of the AIE Directive and the information or records management practices that are required of public authorities under the AIE regime.

She noted in particular that, under the current AIE regime, the environmental information held by public authorities is meant to be systematically organised, catalogued, and at least ready for active dissemination to the public. She found that charging for search and retrieval costs is inconsistent with these intentions. She accepted, however, that costs connected with compiling or copying of the information may be included in a charge for making environmental information available under the Regulations.

Case CEI/12/0008, Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht (the Department) – Decision of 13 March 2013

Whether the Department was justified in refusing the appellant’s request for a list of AIE requests on the ground that the information concerned is not environmental information within the meaning of the Regulations

In Case CEI/11/0001, Mr. Gavin Sheridan and Central Bank of Ireland (26 March 2012), available at www.ocei.gov.ie, Ms. O’Reilly accepted, with some reservation, that official travel by car is an activity within ambit of paragraph (c) of the definition. However, she questioned whether the definition of environmental information was intended to encompass the activities of individual staff members of public authorities as compared to higher level measures and activities such as policies, legislation, plans, programmes, and environmental agreements, i.e. the examples given in paragraph (c). In this case, she gave this question further consideration in light of her decision in CEI/11/0007, Mr. Pat Swords and Department of Environment, Community and Local Government, which is referenced above.

Ms. O’Reilly considered that the corollary to the requirements of the AIE regime must necessarily be that public authorities are permitted to take a reasonable, objective and pragmatic approach to the definition of environmental information. Moreover, she noted that, in the recent “Report from the Commission to the Council and the European Parliament on the experience gained in the application of Directive 2003/4/EC on public access to environmental information”, dated 17 December 2012, the European Commission drew a distinction between the access rights that exist for environmental information, described as “information in any form on the state of the environment or on the state of human health and safety”, on the one hand, and for “general administrative information” on the other.

Ms. O’Reilly accepted that the AIE Regulations and Directive are measures designed to protect the elements of the environment, but in an indirect and aspirational manner only. She considered that the link between AIE requests, including the administrative action taken on the requests, and any environmental impact, is too remote and subject to too many variables for information on the requests to qualify as environmental information within the meaning of paragraph (c) the definition. Moreover, while public access to environmental information may eventually lead to a better environment through more effective public participation in environmental decision-making, she did not accept that the processing of AIE requests by public authorities is itself “designed” to protect the elements of the environment or that it otherwise qualifies as a measure or activity within the meaning of paragraph (c) of the environmental information definition. She concluded that the Department’s decision to refuse the appellant’s request was correct. She noted, however, that the applicant was entitled to make a request for the records sought under the Freedom of Information Act.

CEI/12/0005, Mr. Pat Swords and Department of Environment, Community and Local Government (the Department) – Decision of 20 September 2013

Whether the Department was justified in refusing the appellant’s request in relation to public consultation on climate policy and legislation

In this case, Ms. O’Reilly found that the Department was justified in refusing the applicant’s request under Article 9(2)(a) and (b) of the Regulations. Article 9(2) of the Regulations allows a public authority to refuse to make environmental information available where the request (a) “is manifestly unreasonable having regard to the volume or range of information sought”, or (b) “remains formulated in too general a manner, taking into account Article 7(8)”. Where a request is made in too general a manner, a public authority is required under Article 7(8), as soon as possible and at least within one month of receipt of the request, to invite the applicant to make a more specific request and to offer assistance to the applicant in the preparation of such a request.

Ms. O’Reilly considered that the term “manifestly unreasonable” is sufficiently clear to denote, without further explanation, any request of broad or indeterminate range which has been made in bad faith or which otherwise appears to have been made for some purpose unrelated to the access process. It was readily apparent in this case that the applicant did not seek access to any identifiable environmental information which he genuinely believed may be held by the Department. Rather, he sought to challenge the Department’s reliance on the mandatory greenhouse gas mitigation targets underlying the national climate policy and legislation development programme and to raise questions about the Department’s intention to take “due account” of “all” submissions made in the context of the public consultation exercise being carried out at the time his request was made. While Ms. O’Reilly acknowledged that there is controversy over the commitments which have been made at national and EU level to reduce greenhouse gas emissions, she nevertheless found that the applicant’s request represented a misuse of the right of access under Article 6 of the AIE Regulations. She concluded that the request was subject to refusal under Article 9(2)(a) in the circumstances.

Alternatively, Ms. O’Reilly found that Article 9(2)(b) applied. Although the Department had made only a limited effort to assist the applicant in accordance with Article 7(8), it was evident from his rapid and abrupt response to the Department’s message that it was unlikely he would modify his request so as to render it more specific. The Commissioner stated that, while the AIE Regulations impose significant obligations on public authorities, it was incumbent upon the applicant to act reasonably and in good faith in making his request. She also considered that, as a general matter, “the public interest served by disclosure” is outweighed by the interest served by refusal where, as here, the request appears to have been made for some purpose unrelated to the access process.

Case CEI/12/0003, Mr. Andrew Jackson, Friends of the Irish Environment, and Bord na Móna (BnM) – Decision of 23 September 2013

Whether BnM was justified in its refusal of the appellant’s request on the ground that it is not a public authority within the meaning of the Regulations

The issue presented in this case was whether BnM is a public authority within the meaning of the Regulations. In determining the matter, Ms. O’Reilly examined the history of BnM and had regard to the statutory duties and powers that remain applicable to the company, which, as she noted, is publicly owned. She also had regard to its oversight arrangements with the Department of Communications, Energy and Natural Resources.

Ms. O’Reilly emphasised that BnM’s functions are statute-based and include specific duties in relation to the environment, namely, turf, bogs, and “other lands”, which are all elements of the environment. She also noted that BnM carries out activities and provides services in relation to the environment. While she accepted that BnM performs its functions on a commercial basis, she considered that it does so for the benefit of the public, not for “private profit”. She concluded that BnM is a public authority within the meaning of Article 3(1)(b) of the Regulations in that it is a legal person “performing public administrative functions under national law, including specific duties, activities or services in relation to the environment”. In addition, she found that BnM is a public authority within the meaning of Article 3(1)(c) of the Regulations in that it is a legal person “having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b)”.

BnM appealed from the decision to the High Court, but sought an adjournment of the proceedings pending delivery of the judgment of the European Court of Justice in Case C-279/12, Fish Legal and Shirley v. Information Commissioner et al. After the awaited judgment was delivered on 19 December 2013, BnM withdrew its appeal.

CEI/12/0004, Mr. Gavin Sheridan and Dublin City Council (the Council) – Decision of 20 December 2013

Whether the Council was justified in refusing access to certain items of information relating to Greyhound Waste and the transfer of the waste collection service on the ground that the information concerned is not environmental information within the meaning of the Regulations

In this, my first decision as Commissioner for Environmental Information, I outlined a framework for dealing with cases which raise valid threshold jurisdictional questions and also provided further clarification regarding the scope of the environmental information definition. The records at issue included an Asset Purchase Agreement providing for the transfer of the Council’s waste collection service to a private operator, but also the list held by the Council of the potentially interested parties who were contacted as prospective bidders for the purchase, emails dealing with administrative arrangements, and other records relating to the negotiations over the commercial terms of the agreement. The Council had refused the request in full on the basis that it was not a request for “environmental information” within the meaning of the AIE Directive upon which the Regulations are based.

I have restated in Chapter 1 the approach I outlined for dealing with appeals such as this which involve valid threshold jurisdictional issues. In this case, I also adopted my predecessor’s approach to the environmental information definition. I clarified, however, that while the definition is broad, the examples it provides are meant to illustrate the types of information that it encompasses. In relation to paragraph (c) of the definition, I observed that whether the link between the information concerned and the effect on the environment is sufficient to bring the information within the ambit of the definition is a matter of judgment that may depend upon the circumstances of the case. I noted that, if in doubt, it is appropriate to have regard to the purpose of AIE as reflected in Recital (1) of the Directive, emphasising that AIE is about environmental decision-making, not the general administrative activities of public authorities. Moreover, I explained that, given the obligations on public authorities that AIE imposes, it is vital to the integrity of AIE that it not be seen by the public as merely an alternative access mechanism for information that is more readily understood as falling within the ambit of the FOI Act.

I found that waste collection is an activity within the meaning of Article 3(1)(c) of the environmental information definition and that the Asset Purchase Agreement providing for the transfer of the waste collection service to a private operator is information on that activity and thus likewise qualifies as environmental information. However, I found that the link between the remaining items of information at issue and any effect on the relevant environmental elements and factors is simply too remote to bring them within the ambit of the definition of environmental information under the Regulations. I varied the decision of the Council accordingly.