Decision
Ms D and South Dublin County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145478-J7L0B1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145478-J7L0B1
Published on
Whether the Council was justified in refusing the appellant’s request and whether the Council had taken adequate steps in an effort to identify all relevant information
15 April 2024
1. The appellant made a request under the AIE Regulations on 18 September 2023 for
• a copy of an order or directive by which the grass scheduled to be cut under Palmer Park had been altered to exclude the green in Pearse Brothers Park, this may be in the form of a text message sent on WhatsApp or Messenger on a mobile device by South Dublin County Council and assigned to a member of staff, or received on another mobile device owned by South Dublin County Council and assigned to a member of staff. and
• A copy of the safety statement for proposed boring on the green on Pearse Brothers Park, in so far as it relates to the safety of residents of Pearse Brothers Park and safety of passers-by, and the reinstatement of grass.
2. In an original decision dated 18 October 2023, the Council refused the request on the grounds that the information requested did not exist, outlining its search for the requested information.
3. The appellant sought an internal review on 16 November 2023, on the grounds that there had to have been an instruction to cease grass-cutting. In its internal review decision, the Council affirmed the original decision, on 13 November 2023.
4. The appellant appealed to this Office on 17 January 2024. The appellant sought permission to extend the time permitted for an appeal, which was granted.
5. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Council. 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).
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. As set out above, the decision at issue here is the second internal review decision issued by Coillte on this request.
8. This review is concerned with whether the Council was justified in refusing access to information requested by the appellant on the basis that the information did not exist. While the Council did not refer to article 7(5) in its decisions, this is the relevant provision of the AIE Regulations where a public authority refuses a request on the basis that the information sought is not held by or for the public authority in question.
9. This Office’s approach to dealing with cases where a public authority has refused a request under article 7(5) is to examine whether adequate steps were taken to identity 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 is applied.
10. In its original decision, the Council outlined the search it performed as follows:
“Every effort was made throughout the relevant directorate to check if there were any records as described in the AIE request, including the following steps below:
11. The Council also stated in this decision that the requested safety statement would be held by the relevant contactor, not by the Council.
12. The internal review decision, which is the subject matter of this appeal, summarised the review by a more senior member of staff,
“He has affirmed the decision of the original decision maker to refuse access to the information requested under AIE Regulations on the grounds that no such record exists. No instruction was issued to staff to stop cutting grass on the green space in question at Pearse Brothers Park, and therefore the record or records being sought from us do not exist. Grass cutting will resume in March after the winter period.”
13. Although this internal review decision was more succinct than the original decision, in affirming the original decision, it encompasses the search queries carried out by the original decision maker.
14. In its submission to this Office on the appeal, the Council provided the following summary of the efforts made to locate such an order as requested by the appellant:
“The Council’s Public Realm Section has no record of any order or direction having been issued to staff to alter or exclude the green in Pearse Brothers Park from the grass cutting schedule and as such, we determine that no order or direction was issued. The Public Realm Section has carried out a thorough investigation in relation to this matter and the following personnel have been consulted in this regard: the Senior Engineer, Senior Executive Parks and Landscape Officer, Executive Parks and Landscape Officer, District Supervisor, Foreman of Works, Assistant Foreman, Charge hand and General Operatives. All personnel consulted have confirmed that no such order was issued.”
15. The Council explained the background to changes in the schedule of grass cutting as being,
“The start date for the grass cutting programme is determined by weather conditions over the winter period which determine the earliest date that grass cutting machinery can travel on grass, as well as the extent of grass growth. Similarly, the end of the grass cutting programme is determined by ground conditions being suitable for the machinery to travel on the grass, as well as the need to continue cutting grass which is determined by the slowdown in grass growth as winter approaches.”
16. Having reviewed the internal review decision and considered the submissions, I am satisfied that the specific information requested by the appellant was not held by the Council and that the Council took adequate steps to establish that this was the case. However, it would have been appropriate for the Council to have provided the detail set out above from its submissions to this Office to the appellant in its original decision.
17. It is of course open to the appellant to make a further request to the Council based on the information contained in this decision seeking further information on why the grass cutting schedule may have changed.
18. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Council’s decision.
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