Decision
Dr Fred Logue and Wexford County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-129140-D6L0B3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-129140-D6L0B3
Published on
Whether the Council was entitled to part refuse the appellant’s request under the AIE Regulations
26 February 2024
1. On 20 July 2022, the appellant filed a request for environmental information with Wexford County Council to include:
• A list of all the currently approved local authority own developments in your functional area that have yet to be commenced and in each case the date of approval; and
• A list of all the currently approved local authority own developments in your functional area that have commenced and yet to be completed and in each case the date of approval and the date of commencement.
2. The appellant‘s request was for all local authority own developments to include part 8’s and projects granted permission by An Bord Pleanála under section 175 and/or 177AE of the Planning and Development Act 2000. Legislation does not make specific provision for the duration of permissions approved under these sections. Ultimately, once a local authority own development is approved, the approval remains indefinitely, unless there are specific conditions imposed limiting the period of approval.
3. On 8 August 2022, the Council wrote to the appellant advising them that they considered the request to be formulated in too general in manner. The Council invited the appellant to make a more specific request.
4. On 8 August 2022, the appellant advised the Council that they were seeking all own developments approved under Part 8 of the Planning Regulations or section 175 and/or 177AE of the Planning and Development Act 2000, limited to approvals that are currently in force but where works have not been completed.
5. On 16 August 2022, the Council refused the request under Article 9(2)(b), stating that based on the lack of clarification relation to the request, the volume of records and the potential costs involved across a variety of Council departments, it considered it to be unreasonable to provide the information requested.
6. On 18 August 2022, the appellant requested an internal review.
7. On 7 September 2022, the Council wrote to the appellant and advised them that it would need a two-week extension in order to gather the records requested.
8. On 22 September 2022, the Council annulled the original decision and granted access to information sought from 2017 to 2022. The Council gave no reason for not releasing the records from prior to 2017.
9. The appellant brought an appeal to this office on 26 September 2022.
10. I am directed by the Commissioner for Environmental Information to carry out a review of this matter under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by both parties to each appeal. In addition, I have had regard to:
• 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);
• The Aarhus Convention – An Implementation Guide (Second edition, June 2014) (’the Aarhus Guide’); and
• 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).
• 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);
• The Aarhus Convention – An Implementation Guide (Second edition, June 2014) (’the Aarhus Guide’).
11. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each of these appeals is to review the Department’s internal review decisions and to affirm, annul or vary it. The scope of my review in this appeal is whether the Council were justified in part-refusing the appellants request under the AIE Regulations.
12. Following receipt of this appeal, the Council wrote to the appellant and provided him with a list of all LACs developments from 2013 to 2016. The Council noted that these files were available to view on the Council website, and that the list was incomplete but it was continuing work to complete it. The Council also provided the appellant with a list of all LACs developments from 1995 to 2012 and stated that if he required further information on any particular LAC, they would endeavour to search for the record and provide as much information as possible. The Council did not provide the appellant with the dates of approval or commencement as requested, and it is unclear if the lists provided specifically related to developments that were yet to be commenced or where works had commenced but had not yet been completed.
13. Submissions were sought from the Council by this Office as to its basis for not releasing the requested information from prior to 2017 as per its internal review decision. The Council acknowledged that its handling of the request fell below the standards required. The Council stated that it should have ascertained what records were reasonably available and provided them. The Council also acknowledged that there were missed opportunities at internal review stage to do this. The Council stated that it now intended to compile the relevant information from 2013 to 2016 and to provide an update to the requestor and that going forward it intended to put in place a procedure to ensure that this type of information is compiled by its Planning Department. The Council did not state whether it intended to provide the appellant with the information requested dating from prior to 2013.
14. The Council did not identify a specific basis in the AIE Regulations for the failure to release information dating from prior to 2017 to the appellant. The Council advised that prior to 2013, there was not a central repository for local authority developments. The Council submits that considerable manual intervention would be required to access the information requested. The Council states that each section of the Council would have to search for their own records, and many may be archived in various areas across the County. If the Council believes that any such searches would be considered manifestly unreasonable, then this aspect of the request should have been refused under article 9(2)(a) of the AIE and reasons for this should have been provided to the appellant.
15. 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.
16. 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 do not issue comprehensive and lawful first instance decisions. While I acknowledge the efforts made by the Council, there is still a need to either release to the appellant all of the requested information for or provide proper reasoning as to why this is not possible.
17. Given the above matters, it would likely require significant further submissions to resolve this appeal and to allow me to either direct release of the requested information or affirm the decision of the Council. In this instance, my view is that the most appropriate outcome is for me to remit this case to the Council for a new decision-making process to be carried out. The Council indicated that it intended to continue work on processing the appellant’s request, but did not provide details on how long this might take. In carry out a new decision making process, the Council should either provide all requested information to the appellant, or should give reasons grounded in the AIE Regulations for its refusal or inability to do so.
18. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the decision of Wexford County Council to part refuse the release of records requested and remit the case for a fresh decision making process.
19. 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