Decision
Mr X and National Transport Authority
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-150706-D0F6C9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-150706-D0F6C9
Published on
Whether the NTA was justified in refusing access to the specific data sought by the appellant on the basis that it is not held by or for the NTA
26 November 2024
1. On 8 April 2024, the appellant submitted a request to the NTA seeking access to data:
“(1) on landside origins/destinations of passenger trips to and/or from Dublin Airport based on data NTA appears to have collected in respect of 2016 and 2022;
(2) categorised as in the Table 3.2 [of the NTA Airport Survey for 2011];
(3) presented as Figures 3.6 and 3.7 [of the NTA Airport Survey for 2011].”
2. The appellant indicated that he was not seeking access to the data already published on the following spreadsheets: Dublin Resident_anon and Dublin Non Resident_anon.
4. On 9 May 2024, the NTA issued its original decision. The NTA stated that it was part-granting the appellant’s request, however it refused access to the specific data sought under article 7(5) of the AIE Regulations on the basis that it is not held by or for the NTA.
5. On 3 June 2024, the appellant sought an internal review of the NTA’s decision “[to refuse] to provide data in a comparative format to that which [the NTA] published in the report of the 2011 Airport Survey.” The appellant further commented:
“It is simply not credible that NTA cannot produce tables and figures showing the landside origin/destination of Dublin Airport passengers based on surveys done in 2016 and 2022. Without such readily accessible statistics, it is impossible for the general public to grasp the impact of Airport passengers landside travel on other neighbourhoods in the Greater Dublin Area and understand the measures proposed to manage that travel.
As the decision-making officer is not expert in Geographical Information Systems (GIS), it is unacceptable that the NTA cannot find the resources to make the data it has collected more understandable by appointing another officer with the requisite expertise to complete the work or hire an outside contractor, as is NTA practice in other activities.
It ill behoves NTA, as the promoter of this ill-conceived project to rely on decisions in other sectors, to obfuscate on the basis for the MetroLink project. The estimated cost is at least €12bn for a project which will not be interoperable with any other rail-based transport service in the Greater Dublin Area. Such behaviour lacks merit, as example of our public service capacity to drawup policies based on evidence, as opposed to whimsical decision making and arbitrary allocation of resources. Suppressing such evidence as NTA has does not promote participation in public affairs.”
6. On 3 July 2024, the NTA issued its internal review decision wherein it affirmed its decision to refuse access to the specific data sought under article 7(5) of the AIE Regulations.
7. On 22 July 2024, the appellant submitted an appeal to this Office. Among other things, he stated:
“I want to know the landside origin/destination of Dublin Airport passengers for the years 2016 and 2022. [NTA] collected data on this issue but has not published them in formats comparable to NTA report in 2011…NTA has the means to provide the data in formats conducive to greater public understanding of, and participation in, the development of options to enhance public transport in the Greater Dublin Area…It is not at all clear why NTA refuses to provide this data in formats as it did in 2011.” He also provided further submissions to this Office on 3 September 2024 and 12 November 2024. While I do not repeat those submissions in full in this decision, I can confirm they have been taken into account.
8. I have carried out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the NTA and the appellant, as outlined above, and to correspondence between this Office and both the NTA and the appellant. In addition, I have had 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)
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
11. Having regard to the wording of the appellant’s request as well has his correspondence with the NTA and this Office, I am satisfied that the appellant is seeking access to summary data on landside origins/destinations of passenger trips to and/or from Dublin Airport for 2016 and 2022 in a comparative format to the data from 2011 as set out in Table 3.2 and Figures 3.6 and 3.7 of the NTA Airport Survey for 2011. This review concerns whether the NTA was justified in refusing access to the specific data sought by the appellant under article 7(5) of the AIE Regulations on the basis that it is not held by or for the NTA.
12. It is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. This Office has no role in assessing how public authorities collect, maintain and disseminate environmental information. The role of this Office concerns reviewing appeals of requests for access to environmental information within the scope of a request, which is held by or for the relevant public authority and no more than that.
13. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request.
14. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
15. In this case the appellant’s request seeks access to the 2016 and 2022 data relating to the landside origins/destinations of passengers to/from Dublin Airport in the same form or manner as the equivalent data was presented in the 2011 NTA Airport Survey Report. He refers to Table 3.2 of that report, which sets out the data in a table based on trip origin, whether the passenger was Irish or non-Irish, and the percentage of the total that each category made up. He also refers to Figure 3.6 of that report, which shows the origin of passenger trip in a pie-chart format and to Figure 3.7 which gave a further breakdown of trips from outside beyond the greater Dublin area. The data is not presented in exactly the same format in the 2016 and 2022 reports.
16. The NTA refused access to the specific data sought by the appellant under article 7(5) of the AIE Regulations. In addition to the detail contained in its original and internal review decisions, the NTA provided submissions to this Office in support of its position. During the course of the review, the Investigator provided the appellant with a summary of the NTA’s position, which I have detailed below:
• In its original decision, the NTA stated a technical investigation had been carried out in March 2024 in an attempt “to create ab initio” the data requested in the format requested by the appellant for the 2016 State Airports data. It noted that if it had succeeded with the 2016 data, then it would have tried to process the 2022 data. The NTA stated that in the course of this work, it became clear that the NTA zoning systems had changed several times from 2011 to 2016 and 2022. It also stated that for the 2016 and 2022 data, this was geo-coded to the CSO’s Census Small Areas (CSA’s). It explained that, therefore, a set of steps are required to map the 2016 CSA back to the 2011 NTA model zones and to the sectors which were used for the 2011 data and report. It stated that this would constitute new work as these steps had not been undertaken for the 2016 or 2022 data. The NTA explained that it did not, and does not, have the data processed into the sector system which existed in 2011 and which was used with the 2011 NTA zoning system and presented as figures 3.6 and 3.7 of the NTA Airport Survey for 2011.
• In its submissions to this Office, the NTA stated that it does not hold the information sought by the appellant. It reiterated that an investigation was carried out to ascertain if the data requested was held by the NTA and could be provided to the appellant, that if the 2016 data had been available it was prepared to grant that data and it also would have tried to process the 2022 data. It also reiterated that during this investigation, it became clear that the NTA zoning systems had changed several times since 2011 to 2016 and 2022, that for the 2016 and 2022 data this was geo-coded to the CSO’s CSA’s, and, therefore, steps were required to map the 2016 CSA back to the 2011 NTA model zones and to the sectors which were used for the 2011 data and report. The NTA stated that it had concluded that the 2011 NTA model zones had not been used for the 2016 or 2022 data. The NTA outlined that, therefore, the NTA did not, and does not, have the data processed into the sector system which existed in 2011 and which was used with the 2011 NTA zoning system and was then presented as Figures 3.6 and 3.7 of the NTA Airport Survey for 2011.
• The NTA stated that the specific data sought has not been produced or received by it and therefore it refused the request under article 7(5) of the AIE Regulations on the basis that it does not hold the specific data sought. It stated that it reached this conclusion for the following reasons:
o The NTA zone systems have changed three times since 2011
o The CSO’s small area boundaries have changed twice since 2011
o The data on landside origins/destinations of passenger trips to and/or from Dublin Airport as categorised and presented in 2011 is not used in the manner envisaged in the AIE Request for later years.
• The NTA submitted that public authorities must produce, structure, and organise information according to the needs of the organisation at the time information is created. The NTA contended that, in this instance, it is required to determine periodically what information is required to be collected and produced for each Airport Survey. The NTA noted that any periodical report produced by it (or any public authority) is not necessarily the exact copy of a previous edition of the report. It stated that this is due to changes such as new government policies, different organisational strategic plans and priorities, updates to statistical zones, or different statistical processes/ reporting standards being used that are more appropriate to conditions of the time. The NTA stated that whilst the reports for 2011, 2016 and 2022 form part of a series, they are not, nor were intended to be exact copies of each other.
• The NTA provided this Office with a copy of an email it sent to the appellant on 23 January 2024, which discussed landside origin/destination data for 2022, and the decision letter dated 20 December 2023, which it issued to the appellant in another AIE Request (A2023-0012).
17. The Investigator noted that the appellant’s statement of appeal included the comment “I want to know the landside origin/destination of Dublin Airport passengers for the years 2016 and 2022. National Transport Authority collected data on this issue but has not published them in formats comparable to NTA report in 2011.” She also stated that having examined the appellant’s submissions to this Office, she understood it to be his position that the specific data sought by him ought to exist. She further outlined that, in light of comments in his internal review request and his submissions to this Office, she wished to note that it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. She explained that this Office has no role in assessing how public authorities collect, maintain and disseminate environmental information; this Office’s role concerns reviewing appeals of requests for access to environmental information, which is held by or for the relevant public authority and no more than that.
18. In response, the appellant referred this Office to his submissions dated 3 September 2024, to which I can confirm I have had regard, and made the following comments:
“Is it not completely contrary to normal practice that a collector for data for public policy purposes simply refuses to publish summaries of that data? Do other bodies/groups/individuals (e.g. CSO, HSE, EPA, Met Eireann, opinion polling companies, scientists, technologists, economists, professionals in many sectors) which gather data publish their results in raw form i.e. voluminous spreadsheets of each data point? Can NTA point to any other instance where it follows this practice e.g. travel statistics, canal cordon counts? How does this exceptional instance support the NTA claim, in its submission … ‘…that the public authorities must produce, structure, and organise information according to the needs of the organisation at the time the information is created?’
The public understanding of complex projects is not helped by the refusal of those promoting such projects to process and publish summaries of data which they have gathered as part of their consideration and development of options to enhance our environment. They have the liberty to point out that such summaries may not be directly comparable to previous summaries of similar data which they have published on the same topic. What purpose is served by the NTA, as a public authority, not finding it necessary to produce data broadly comparable to what it produced and published in the 2011 survey, given that it is the prime promoter of the €12bn MetroLink proposal.”
19. The general thrust of the NTA’s position is that the specific data sought by the appellant is not held by or for it. For a number of reasons as set out by the NTA, the data it holds in relation to 2016 and 2022 is different to that compiled in 2011, and I accept based on the submissions of the NTA that it is not possible for the NTA to reformat the data in the manner requested by the appellant. I am satisfied that the NTA have made reasonable efforts to investigate whether this might in fact be possible. As previously indicated, it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. My role concerns reviewing appeals of requests for access to environmental information within the scope of the request, which is held by or for the relevant public authority and no more than that. If the information sought is not held by or for the public authority then that is the end of the matter, regardless of whether or not the requester believes that the information ought to exist based on his or her views as to what constitutes good administrative practice.
20. In all the circumstances and having considered the NTA’s explanations as to why it does not hold the specific data sought by the appellant, I am satisfied that the NTA was justified in refusing access to the specific data sought under article 7(5) of the AIE Regulations on the ground that it is not held by or for the NTA.
21. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the NTA’s decision to refuse access to the specific data sought by the appellant under article 7(5) of the AIE Regulations.
22. 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