Decision
Mr C and Westmeath County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152493-R2X8V7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152493-R2X8V7
Published on
Whether the Council had provided adequate reasons for refusing the request on the basis that the request was manifestly unreasonable
18 October 2024
1. On 8 July 2024, the appellant requested a range of information relating to the N4 Emerging Preferred Route Corridor. In particular, the request sought:
• A copy of the Risk Register - 2.1.7 Cost, Risk, and Value Management Procedures
• A copy of Project Execution Plan (PEP) – including Lessons Learned 1.1.2
• A copy of the Feasibility report 1.1.6 Constraints, Risks and Opportunities Study
• A copy of Project Appraisal Balance Sheet 2.1.5.4
• A copy of the Multi Criteria Analysis 2.1.5.2
• A copy issues raised at Peer Review and responses 2.1.6.1.
• A copy of Option Comparison Estimates (OCEs), Estimate Assumptions Sheet and Estimate Tracking Sheet - 2.1.7 Cost, Risk, and Value Management Procedures
• A copy of A0.1 Lessons Learned Register
• A copy of A0.2 Decision Register
• A copy of A0.3 Document Register
• A copy of A0.4 Progress Report
• A copy of A0.6 Project Dossier
• A copy of A0.7 Phase 0 Gate Review Statement, to include all phases/gates to date.
• A copy of A1.1 Constraints, Risks and Opportunities Study
• A copy of A1.3 Procurement File
• A copy of A1.4 Phase 1 Feasibility Report
• A copy of A2.5 Phase 2 Options Report
• A copy of A2.6 Options Selection Peer Review
• Climate Assessment of Proposed National Roads - Standard PE-ENV-01105 December 2022
• A copy of Appendix A through I (9 reports in total) to include all phases from Phase 0 Scope and Strategic Assessment to date.
2. The Council sought clarification on the appellant’s request and the appellant resubmitted his request on 5 August 2024 confirming that he was seeking information on the following aspects of the project:
• Environmental Impact Assessments (EIAs): Copies of all EIAs conducted for the project, including preliminary assessments and any updates or revisions.
• Ecological Surveys: Results and reports of any ecological surveys, including flora and fauna assessments, habitats, and protected species surveys.
• Water Resources: Information on the impact of the project on water resources, including hydrological studies, water quality assessments, and any related mitigation measures.
• Air Quality: Data and reports on air quality assessments carried out along the proposed routes, including baseline data and predicted changes.
• Noise and Vibration: Reports on noise and vibration assessments, including baseline measurements and predicted impacts during and after construction.
• Soil and Geology: Information on soil and geological assessments, including any risks of contamination and proposed mitigation strategies.
• Cultural Heritage: Reports and findings related to the impact on cultural heritage sites, archaeological surveys, and any mitigation measures planned.
• Community and Socio-economic Impact: Studies or assessments on the socio-economic impacts on local communities, including public consultations, community feedback, and planned mitigation measures.
• Mitigation Measures: Detailed descriptions of all proposed environmental mitigation measures for the project, including any monitoring plans.
• Legislative Compliance: Information on how the project complies with relevant environmental legislation and guidelines, both national and European.
• I would appreciate it if you could provide electronic copies of the requested documents or direct me to where I can access this information. If any of the requested information is unavailable, please let me know the reasons for its unavailability and any alternative sources or documents that may contain similar information.
3. The Council issued a decision on the request on 29 August 2024, refusing the request on the grounds that the time estimated to fulfil the request would cause a substantial and unreasonable interference with the work of the Council. The appellant sought an internal review on 3 September 2024. The Council issued an internal review decision on 1 October 2024, affirming the original decision. The appellant appealed to my Office on 3 October 2024.
4. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the decision-making records relevant to this appeal. In addition I have regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
5. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
6. The original and internal review decision issued by the Council in respect of this request are both relatively brief. The relevant part of the original decision reads:
“I have made a final decision on your request on 29th August 2024. I can confirm that the time estimated to identify, search for, locate, retrieve information or documents containing the information sought in your request and extract the information from both manual and electronic records is such (90 hours) that it would cause a substantial and unreasonable interference with or disruption of work in the functional area of the Council already involved in the N4 Emerging Preferred Route Corridor.
I therefore refuse your request”
7. The internal review decision replicates the above text, although noting that the decision on review is an entirely new and separate decision. Neither decision contains reference to either article 9(2)(a), the relevant provision of the AIE Regulations or to the requirements of article 10 of the AIE Regulations including the public interest test, and the requirement in article 10(5) to make available information which although held with information to which article 9 or 9 relates, may be separated from such information.
8. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
9. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
10. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
11. Having reviewed the decision-making records in relation to this appeal, I am not satisfied that the Council’s decision-making process was satisfactory having regard to the obligations placed on public authorities. The Council have not provided adequate reasons for its decision and failed to carry out a public interest test as required by article 10(4) of the AIE Regulations.
12. The decisions of the Council do not make any reference to the relevant provision of the AIE Regulations that a public authority must rely on should it wish to refuse a request on the basis that the request is manifestly unreasonable. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, it is necessary to examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities.
13. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, it is necessary to examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. The findings of the Court of Justice of the European Union (CJEU) in T-2/03 Verein für Konsumenteninformation v Commission, at paragraphs 101-115, suggest that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. If a public authority wishes to rely on the manifestly unreasonable nature of a request to refuse all or part of that request, it should be in a position to clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
14. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
15. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is important to note that both article 7(2)(b) of the AIE Regulations and Article 3 (2)(b) of the AIE Directive specifically envisage that public authorities will deal with the voluminous or complex request, albeit in a longer time frame. The fact that a request is detailed does not mean that it is necessarily unreasonable.
16. In this particular appeal, the decisions state that the time estimated for responding to the request is 90 hours, however the Council provides no explanation as to how that estimate was reached. The Council has not explained what exactly would be involved in answering the request or how many staff members would be required to be involved. The Council has not set out in sufficient detail how or why answering this request would impact on the normal work of the Council. The statements made by the Council in its decisions are not sufficient to justify a decision to refuse a request having regard to article 9(2)(a) of the AIE Regulations. Further, there is no evidence that the Council considered extending the time in which it could respond to the request under article 7(2)(b) of the AIE Regulations. Finally, as noted above, the Council did not consider article 10 of the AIE Regulations in its decisions.
17. In light of the above, I will annul the decision of the Council. The effect of this is that the Council are required to provide the appellant with a new internal review decision, taking into account the matters described above. Should the Council conclude that article 9(2)(a) does in fact apply to the request, have provided adequate reasons for this conclusion, the Council should then consider the requirements of article 10 of the AIE Regulations. Firstly, the Council must consider under article 10(5) whether there is any of the information relevant to the request that could in fact be made available to the appellant. I note that the appellant’s clarified request contains 10 different parts and on initial review, it would appear that at least some of this information should be readily available to the Council. Finally, if refusing the request, the Council must consider whether the public interest in disclosure outweighs the interest served by refusal, as required by article 10(3) of the AIE Regulations.
18. Rights under the AIE regulations are very important and there is a clear duty on public authorities to comply with their obligations, including the obligation to give reasons. This office has a significant backlog of appeals and it will be impossible to clear the backlog if public authorities don’t issue comprehensive and lawful first instance decisions. My options under the AIE regulations are limited and it is not tenable for this Office to review in substance all environmental information where public authorities do not make lawful and sufficiently reasoned first instance decisions.
19. I understand that the requestors in these appeals may feel that this allows the Council to have an additional opportunity to consider their requests, and will add a considerable delay to this case. But it appears to be to be the least worst option given the nature of the decisions issued in respect of these requests. If the Council issue further decisions in respect of these requests without reasons, I may have to consider simply ordering release of the information
20. Having carried out a review under article 12(5) of the AIE Regulations, I annul the decision of the Council. The Council must provide the appellant with a new internal review decision.
21. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information