Decision
Mrs. X and Waterford City and County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-139391-T5V7J2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-139391-T5V7J2
Published on
Whether the Council was justified in refusing access to additional environmental information relating to an identified planning reference coming within the scope of the appellant’s request other than any information already publicly available on its website on the basis that no further relevant environmental information is held by or for it
Date of decision: 12 February 2024
1. On 11 May 2023, the appellant submitted a request to the Council seeking access to information relating to planning reference 2360089, as follows:
“Decommission: …the Cost Benefit Breakdown on how the figure of 160,000 euros bond was calculated in relation to the proposed development in Planning Ref: 2360089 under condition 5(d).
Policy & Legislation of the Water Quality Framework used in relation to the River Clodiagh and its tributaries.
Biodiversity under the Habitats Directive[:] The measurements and procedures in place to note and protect the Species listed in the planning application under the Habitat[s] Directive and those Species not listed in the Planning Application.
Freshwater Pearl Mussel[:] The mapping and measurements taken to ensure the water quality for the River Clodiagh in relation to this Planning Ref: 2360089.”
2. On 17 May 2023, the Council issued its original decision wherein it refused the appellant’s request. It stated:
“Planning Application 2360089 is currently an active file with a decision issued on 3rd May 2023 with an appeal period to An Bord Pleanála [ABP] of four weeks. The Planning Authority does not comment on any active file. If the requester wishes to submit their AIE request after this period has elapsed the Planning Authority can assess same at that time. I therefore refuse your request.”
3. Also on 17 May 2023, the appellant sent a number of emails to the Council and sought an internal review of the Council’s decision. In her emails the appellant asked the Council to clarify when the file would not be deemed an “active file” and also queried why the factual information she was seeking could be refused on the basis that it was an “active file”. She also explained that she was not asking the Council to comment on the planning file, rather she was seeking access to information relating to the planning file under the AIE Regulations.
4. On 9 June 2023, the Council issued its internal review decision. While the Council stated that it varied it decision, it annulled its decision to refuse and granted access to information by providing a website link. It stated:
“All records relating to the planning permission 2360089 held by [the Council] are available publicly on the planning file accessible on https://www.eplanning.ie/WaterfordCCC/SearchExact . As these records are already available there was no reason to deny access to them.”
5. On 12 June 2023, the appellant emailed the Council and asked it to provide her with the specific extracts available at the website link that were relevant to her request. On 30 July 2023 (subsequent to the appellant’s appeal to this Office), the Council responded to the appellant’s email, commenting:
“…The [C]ouncil act in a quasi-judicial role in relation to planning applications, because of this, the [C]ouncil cannot discuss matters relating to a planning application outside the planning process, while a planning file is active. The [C]ouncil consider a planning file to be active from the moment it is submitted, until the final grant of permission or refusal has issued. This period includes any appeal period to [ABP].
Because of this and to ensure transparency, all records and information, used to inform a planning decision are undertaken in writing and placed on the planning file.
[The Council is] not in a position to parse or summarise planning applications for members of the public.
The original decision not to grant the AIE request, citing this rule, may have given the impression that there was other information or records, not on the file which may have informed the decision. This is not the case.
If the records you are seeking are not on the planning file, this is because they do not exist.”
6. There was further correspondence between the appellant and the Council regarding her view that further relevant information other than that on the website should exist and a perceived conflict of interest she raised in respect of the processing of her request.
7. On 12 June 2023, the appellant submitted an appeal to this Office. In her statement of appeal, she contended that there is information relevant to her request, which is not available at the website link provided by the Council. She also referred to her concern about a perceived conflict of interest in the processing of her AIE request, as the internal review decision-maker was involved in the planning process and the preparation of a report made by the Environment Section available at the website link.
8. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Council and the appellant as outlined above and to correspondence between my Office and both the Council and the appellant on the matter. 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. This review concerns whether the Council was justified in refusing access to additional environmental information relating to planning reference 2360089 coming within the scope of the appellant’s request other than any information already publicly available on its website on the basis that no further relevant environmental information is held by or for it.
12. Before I address the substantive issue arising in this case, I wish to make a number of preliminary comments.
13. First, as noted above, the Council, in its original decision, stated:
“Planning Application 2360089 is currently an active file with a decision issued on 3rd May 2023 with an appeal period to An Bord Pleanála of four weeks. The Planning Authority does not comment on any active file. If the requester wishes to submit their AIE request after this period has elapsed the Planning Authority can assess same at that time. I therefore refuse your request”.
14. As the Council ought to be aware, article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations. Accordingly, if a public authority wishes to refuse access to environmental information held by or for it, it must do so under an exemption provided for in the AIE Regulations. While I acknowledge that the Council subsequently annulled its original decision to refuse the appellant’s request and granted access to information by providing a website link, I wish to highlight that it was not open to the Council to refuse the appellant’s request at original decision solely on the basis that it does not comment on active planning files. The AIE process is separate to the planning process. Any decision to refuse information held by or for the Council should have been made in accordance with one of the exemptions provided for in the AIE Regulations and adequate reasons for that decision should have been provided to the appellant.
15. Second, in her submissions to this Office, the appellant raised concerns about a perceived conflict of interest in the processing of her AIE request, as the internal review decision-maker was involved in the planning process and the preparation of a report available at the website link. In its submissions to this Office, the Council noted that the individual concerned is a Senior Executive Engineer whose role includes making comments on planning applications on behalf of the Environment Department as part of the planning process and undertaking internal reviews of original decisions made as part of the AIE process. It is important to note that it is often the case that staff in public authorities are AIE decision makers in the areas/departments in which they work and are involved in the subject-matter to which AIE requests relate.
16. Third, this Office has no remit to investigate complaints, to adjudicate on how public authorities perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by public authorities. The remit of this Office is solely concerned with a review of the decision taken by a public authority on an AIE request.
17. Finally, I note that the importance of timely access to information in the context of planning and development was highlighted by the European Commission in its First Proposal for what is now the AIE Directive, and again by Advocate General Kokott and the Court of Justice of the European Union (the CJEU) in case C-186/04 Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale (see paragraph 24 of the Opinion and 28 of the judgment). On behalf of the Commissioner, I wish to apologise to the appellant for the delay in reaching a conclusion on this case. We are committed to concluding appeals in a timely manner, as required by the Aarhus Convention. This Office continues to make inroads on the current backlog of cases so that the delays experienced by the appellant are not repeated.
18. Article 7(1) of the AIE Regulations, as previously indicated, requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations. 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.
19. It is the appellant’s position that there is additional information relevant to her request which is not available at the website link provided by the Council in its internal review decision. During the course of this review, this Office sought submissions from the Council, which included the following request for details:
“[i]f your organisation is of the view that some or all of the information/records sought by the appellant, including further relevant records that the appellant contends exist or should exist, do not exist or cannot be found after all reasonable steps to search and identify such information/ records have been taken, please provide full and complete details of these steps and searches, along with its records management, retention and disposal policies in respect of the specific information/records sought in this case.”
20. In its response, the Council set out the background to the case and its correspondence with the appellant. It reiterated its position that all information relating to the planning file identified is available on its website which can be searched using the planning reference number (or for public inspection at its offices) and that any additional information which the appellant is seeking does not exist. I also note its explanation to the appellant of its role in the planning process and that to ensure transparency “all records and information, used to inform planning decisions are undertaken in writing and placed on the planning file.”
21. However, the Council provided no further explanation to the appellant or this Office in support of its position. It made no reference to the specific information sought at each part of the appellant’s request. It also did not provide details of any particular searches carried out in an effort to locate that specific information (e.g. what systems/documents were searched, where those documents were held, what search terms were used, etc.) and/or any further contextual clarification as to why it considered that specific information did not exist (e.g. how the Council’s planning processes and procedures work in respect of the matters raised the appellant’s request, what type of information is typically considered or created, etc.)
22. Furthermore, while I note the Council’s comments to the appellant that it acts “in a quasi-judicial role in relation to planning applications, because of [which], [it] cannot discuss matters relating to a planning application outside the planning process, while a planning file is active” and it is unable to “parse or summarise planning applications for members of the public”, it is not fully clear to me why the Council could not have identified any specific information available on its website that was relevant to the appellant’s request. It is important to note that when processing an AIE Request a public authority must identify relevant information held by or for it to be considered for release under the AIE Regulations. In doing so, a public authority is required to have appropriate regard the scope of the appellant’s request, which is limited by its wording. The appellant’s original request in this case was clear. She sought access to particular information relating to an identified planning file, concerning, in summary, the calculation of a bond, policy and legislation used, measurements and procedures in place to note and protect species, and mapping and measures taken to ensure water quality.
23. Having examined the Council’s website, I note that there is a considerable amount of information available relating to the identified planning file, including over 400 scanned documents. I have not reviewed all of this information, however a brief examination shows that it includes information which does not pertain to the particular information requested (e.g. general administrative details relating to the planning application, acknowledgements, etc.). The Council gave no indication to either this Office or the appellant regarding the extent to which the particular information sought is available on its website. Accordingly, it is not evident to me that the Council carried out a proper assessment to determine what information on its website actually fell within the scope of the appellant’s request, as is required.
24. While it may be that the further information sought by the appellant is not held by or for the Council, the Council has not provided sufficient details of any searches carried out and/or explanations to suggest why that is in fact the case. In the circumstances, I cannot be satisfied that the Council has carried out adequate steps in an effort to ascertain the whereabouts of all information coming within the scope of the appellant’s request. I find, therefore, that the Council was not justified under article 7(5) of the AIE Regulations in refusing access to additional information.
25. In light of all of the above, I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council, the effect of which is that the Council must consider the appellant’s request afresh and made a new, first instance decision in accordance with the provisions of the AIE Regulations. The appellant will have a right to an internal review and a review by this Office if she is not satisfied with the Council’s decision. I appreciate that remitting the case back to the Council causes further delay for the appellant. However, I do not believe that there is an appropriate alternative course of action to take in this instance.
26. 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 Council’s decision. I direct the Council to undertake a fresh decision making process in respect of the appellant’s request.
27. A party to this appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
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Julie O’Leary
on behalf of the Commissioner for Environmental Information