Decision
Dr Fred Logue and Donegal County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-128267-W3R8V4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-128267-W3R8V4
Published on
Whether the Council was entitled to rely on article 9(2)(a) of the AIE Regulations to refuse the information requested by the appellant
14 March 2024
1. On 20 July 2022, the appellant made a request for environmental information to Donegal County Council seeking:
1. 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
2. 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. On 26 July 2022, the Council wrote to the appellant asking them to reduce the time frame to all part 8’s for the years 2021 and 2022. The appellant responded that they were not prepared to narrow the scope of their request.
3. On 4 August 2022, a series of communications were exchanged between the Council and the appellant. The Council stated that the request would require the retrieval and examination of such an amount of records, it would cause a substantial and unreasonable interference to its work. The appellant responded by saying that they were happy to consider a phased approach to retrieving the information. The Council responded by saying it would rely on Article 9(2)(a).
4. On 16 August 2022, the Council refused the request under Article 9(2)(a), 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 is considered to be unreasonable to provide the information requested.
5. On 18 August 2022, the Council issued decision refusing the release of the information sought as it considered it to be manifestly unreasonable.
6. On 18 August 2022, the appellant made a request for an internal review.
7. On 8 September 2022, the Council affirmed the original decision and refused the release of the information requested under Article 9(2)(a), as the Council believed that the request was manifestly unreasonable having regard to the volume or range of information sought.
8. The appellant brought an appeal to this office on 8 September 2022.
9. 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’).
10. 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.
11. In its submissions on this appeal, the Council stated that it does not maintain a register that tracks when or if local authority own development projects are commenced, or whether they are fully or partially completed. The Council has stated that it does not have a centralised system for managing own developments. Responsibility rests with individual departments within the Council to prepare, submit and then act on approvals to implement the development assuming funding and other resources remain available. Records relating to those developments are held in those individual departments.
12. The Council set out that in order to fully process this request, the Council would be required to:
1. Prepare a list of approved Own Development projects to include the date of approval. Since 2013, the Council’s planning department have maintained a register of such developments. The Council noted that developments approved by an Bord Pleanála (ABP) should be readily available on the ABP website. The Council stated that to compile a list of relevant developments prior to 2013, a review of Council meeting minutes from 2000 to 2012 would be required.
2. Determine the Council Department most likely to hold records related to each development.
3. Locate record(s) that will show the extents of the approved development. The Council’s submissions set out that this will be necessary in order to establish whether the development has in fact been completed, and that the documentation either submitted to ABP or to the relevant Council meeting should show this.
4. Locate record(s) to establish if the work on the approved development has been commenced and what the date of commencement was. The Council suggests that the easiest way to establish a commencement date for a development would be to review the related financial records, and notes that a new financial system was introduced in the early 2000s which would allow these records to be searched financially.
5. Locate record(s) to confirm the extent of the work that was done. The Council suggests that it may be difficult in some instances to establish whether a project has in fact been completed. It gives the example of a road realignment project in the county has an approved Part 8 in place for in excess of 10 years. Funding for this development has not been secured however some works have been commenced, including fencing and some limited footpath works. The majority of the work has yet to be completed. This information is within the knowledge of the council staff involved in the project who remain employed by the Council. The Council states that for historical projects there may be no records available to provide this information.
6. Compare (3) and (5) to determine if the work has been fully completed or partially completed
13. The Council estimates that carrying out the above steps for all relevant projects over this time period would take a number of staff in excess of 80 hours to complete. However, in its submissions, the Council stated that for the majority of own developments, it is in a position to provide the applicant with the information requested.
14. Article 9(2)(a) 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. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
15. Article 9(2)(a) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) of the AIE Regulations requires a public authority to consider each request on interest served by its refusal and Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on aa restrictive basis having regard to the public interest served by disclosure. Article 7(4)(c) of the Regulations requires a public authority to specify the reasons for refusal of a request.
16. 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.
17. 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.
18. In that regard, the test set out by the CJEU at paragraph 69 of its decision c-619/19 Land Baden-Württemberg v Dr should be borne in mind:
“…[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”.
19. The European Commission’s First Proposal for the AIE Directive (COM/2000/0402 final-COD 2000/0169) envisaged that the exception in article 4(1)(b) of the Directive would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit”. It went on to acknowledge that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities” before noting that “authorities should be able to refuse access in such cases in order to ensure their proper functioning”. The interest which the “manifestly unreasonable” exception seeks to protect therefore is the interest in ensuring a public authority is not overburdened by a request, to the extent that this significantly interferes with its ability to perform its other tasks and duties.
20. Having considered the submissions made by the Council, I find that the Council have not established that the request, in its totality, is manifestly unreasonable. The Council have indicated that it should be in a position to provide the appellant with the majority of information sought, and that for a more recent timeframe, this information should be readily available. I note that in particular, the Council’s planning department have maintained a register of local authority own developments since 2013, that related financial records have been stored electronically since the early 2000s, and presumably that staff within the Council should have knowledge of more recent relevant developments and be able to confirm whether or not the said developments have been completed.
21. As the Council have not yet identified the information relevant to this request, or the extent to which such information may not be available, I cannot direct the release of information at this stage. I consider that the appropriate action for me to take is to annul the internal review decision of the Council. Accordingly, the Council should provide the appellant with a new internal review decision under the provisions of article 11 of the AIE Regulations. In doing so, the Council should identify whether it can provide the appellant with some or all of the information requested. It may be that the Council is unable to provide some of the information requested as it does not hold records that allow it to determine the required information, as set out in its submissions. If so, the Council should consider whether article 7(5) of the Regulations may apply to these elements of the request. If that is the case, the Council should set the steps taken to search for relevant information and its basis for concluding that it does not hold information relevant to the request. If the Council wishes to continue to rely on article 9(2)(a) in respect of any element of the request, it should bear in mind my findings above and note that the onus is on the public authority to establish that the administrative burden of dealing with the request is of a sufficient level to engage article 9(2)(a).
22. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the internal review decision of the Council.
23. 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