Decision
Mr Eoin Brady and Roscommon County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-115930-K6M6J0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-115930-K6M6J0
Published on
Whether the Council was justified in refusing access to information relating to flood relief works at Lough Funshinagh, on the basis that the request was manifestly unreasonable within the meaning of article 9(2)(a) of the AIE Regulations.
1. On 9 August 2021, the appellant requested the following, to include all electronic communications on electronic devices including text messages and messages protected by encryption services such as WhatsApp under the control of the staff, including the Executive members and the elected members of the Council:
a. All internal correspondence between the staff, including the members of the Executive of Roscommon County Council in the period from 1 April 2021 to 31 May 2021, concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon;
b. All correspondence between the staff, including the members of the Executive, or on which staff or members of the Executive of Roscommon County Council were copied on in the period 1 April 2021 to 31 May 2021 and the elected members of Roscommon County Council concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon;
c. All correspondence between the staff of, including members of the Executive of Roscommon County Council and/or the elected members of Roscommon County Council and the Office of Public Works (OPW) in the period 1 January 2021 to the date of the request concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon;
d. All correspondence between the staff of, including members of the Executive of Roscommon County Council and/or the elected members of Roscommon County Council and the Department of Public Expenditure and Reform, including the Minister of State Patrick O’ Donovan and his office, in the period 1 January 2021 to the date of the request concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon;
e. All correspondence between staff of, including members of the Executive of Roscommon County Council and the Geological Survey Ireland (GSI) in the period 1 January 2021 to the date of the request, including the correspondence concerning the analysis of future flood trends at Lough Funshinagh completed in April 2021.
f. All correspondence between staff of, including members of the Executive of Roscommon County Council and the National Parks and Wildlife Service (NPWS) in the period 1 January 2021 to the date of the request concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon.
2. It appears that the Council and the appellant engaged in some correspondence prior to a decision on his AIE request being issued. The Council wrote to the appellant and advised him that his request was, in its view, voluminous. It noted that the appellant had requested similar information from other public authorities. The Council proposed to process the request for internal correspondence of Council staff and correspondence between Council staff and the elected members for the period 1 April 2021 to 31 May 2021. Following that correspondence, on 7 October 2021, the appellant narrowed the scope of his request by confining the date parameters for parts c., e., and f. of the request as above to 1 April 2021 to 30 June 2021. The appellant made no refinements to the other parts of the request. In his response to the Council, the appellant also stated that he was amenable to a 3-week extension on the deadline for the Council’s response to his request.
3. On 8 October 2021, the Council refused access to the information on the ground that the request was manifestly unreasonable having regard to article 9(2)(a) of the AIE Regulations.
4. On the same day, the appellant requested an internal review of the decision.
5. On 8 November 2021, on internal review, the Council affirmed the decision to refuse access to the information on the ground that the request was manifestly unreasonable.
6. The appellant brought this appeal to my Office on 16 November 2021.
7. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, 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 ).
8. What follows does not comment or make findings on each and every argument advanced but I have considered all materials submitted in the course of the investigation.
9. 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.
10. In its decision, the Council refused the appellant's request for information on the basis that the appellant’s request was manifestly unreasonable. My review is therefore concerned with whether the Council is entitled to rely on article 9(2)(a) of the AIE Regulations in respect of its refusal to provide access to the information requested.
11. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive.
12. The scheme of the AIE Directive is to provide for a general right of access to environmental information on request (Article 3) with specific, exhaustive exceptions to that general right of access (Article 4). Recital 16 informs the approach that must be taken to the Directive, providing that: “The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases.”
13. Article 4(1)(b) of the AIE Directive provides that “Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable”. The European Commission’s First Proposal for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit. Moreover, 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. Authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on a request for advice by Belarus, ACCC/A/2014/1, paragraph 28).
14. 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 clear that more than simple volume or complexity is required. 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 voluminous or complex requests, albeit in a longer timeframe. In this respect, I note the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 108-110, and the guidance at page 84 of the Aarhus Guide. I also note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that this duty indicates that individual requests should, in principle, be on matters of detail. As such, the fact that a request is detailed does not mean that it is necessarily unreasonable.
15. 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, one must 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. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider 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.
16. Where an exception applies, in every particular case a public authority must carry out the balancing exercise required by article 10(3) of the AIE Regulations (see C-266/09 Stichting Natuur en Milieu, paragraphs 55-59). The AIE Regulations do not permit public authorities to require an applicant to set out a specific interest justifying disclosure of the environmental information sought. However, where the applicant has provided information as to his particular interest the public authority must take those interests into account when considering the public interest balance in the particular case (see paragraphs 61 to 63, C-619/19 Land Baden-Württemberg v D.R.).
17. In its submissions to this Office, the Council stated that the ongoing flooding at Lough Funshinagh, and associated project design and construction works, are complex matters that have generated a significant volume of records including correspondence between the Council and the stakeholders involved.
18. It estimated by the Council that 16 to 20 people would need to be included in the search for relevant correspondence. Such correspondence is held primarily electronically, stored on a Council server and/or on individual devices allocated to staff and elected members. Some correspondence may also be held in hard copy.
19. Electronic files may be searched by keywords, but the Council explained that a manual search to identify records not captured by such a search would also need to be completed. The Council estimated that each person involved in the search would need to spend an average of five hours to complete the search for a total of 80 to 100 man hours.
20. The Council also estimated that processing the request would require at least a further 60 hours for forwarding documents to the AIE Officer, creating a schedule for the records, and examining the documents to determine whether any information should be withheld or redacted.
21. The Council stated that it was unable to provide an estimate of the number of records falling under the scope of the request without carrying out the searches outlined above. The Council argued that this task is, in itself, manifestly unreasonable.
22. In its submissions, the Council sought to rely on a previous case it dealt with, which was before the Office of the Information Commissioner, but was withdrawn by the applicant. In that case, the OIC wrote to the Council to express a preliminary view that the Council’s decision to charge a fee for processing a request, which it had estimated would take 30 hours, was reasonable. The Council, in its submissions in this case, argued that the information requested in the previous case was similar and would require similar work on the part of the Council. The Council argued that for that reason, and on the basis of the preliminary view by the OIC, it could be deduced that the volume and range of information being sought by the appellant in this case is manifestly unreasonable.
23. With regard to public interest considerations, the Council, in its original and internal review decisions, identified the factors favouring disclosure as the right of the public to have access to environmental information and the interest in public bodies being open, transparent, and accountable and providing scrutiny of decision-making processes. It weighed those factors against the fact that the processing of AIE requests and release of associated records would impair and interfere with its core functions to a significant or substantial degree by causing unreasonable interference and disruption to work progress, without any countervailing benefit to the public.
24. In its submissions to this Office, the Council acknowledged the strong public interest in persons having a right of access to information in relation to the Lough Funshinagh project and the Council being open, transparent and accountable with regard to the environmental impact of this project in particular. To that end, the Council stated that it had made considerable information in relation to the project available on its website.
25. The Council explained that the appellant had made five other AIE requests relating to Lough Funshinagh in a short period from August to October 2021. The Council stated that those requests were reasonable in their scope, yet substantial. The Council stated that it had made a significant effort to release the requested information as soon as possible in those cases. The Council argued that processing this request, however, would have a detrimental impact on service provision to the Council’s clients and its customers.
The Appellant’s position
26. In a submission to this Office, the appellant stated that this request relates to information sought in respect of a decision of the Chief Executive of the Council by way of an Order dated 19 May 2021. That Order was to undertake works to abstract water from Lough Funshinagh and pump it to Lough Ree to alleviate flooding to properties near Lough Funshinagh. The appellant stated that both Lough Funshinagh and Lough Ree are designated Natura 2000 sites under the Birds and Habitats Directives.
27. The appellant stated that this client, Friends of the Irish Environment, took judicial review proceedings against the Order, which resulted in the Order being quashed in the High Court. As a result, the Council was not entitled to begin works to pump water from Lough Funshinagh.
28. The appellant argued that there is a significant public interest in this case, in circumstances where, in his view, the works have recommenced and are continuing under a different legal procedure. The appellant argued that there has been no hydrological assessment of the works to drain the Lough, contrary to advice from the National Parks and Wildlife Service, and other consultants, to the Council.
29. The appellant argued that the information sought is essential to inform his client and the public generally as to the environmental implications of the proposed works. The refusal to process the request results in a considerable gap in available information and, according to the appellant, restricts the rights of his client and the public under the Aarhus Convention. The appellant argued that, consequently, there is a greater potential for environmental damage to arise.
30. The appellant also pointed out that the works currently underway have been authorised by the Council on the basis of urgent humanitarian emergency, where human life is endangered. In those circumstances, the appellant argued that there is an onus on the Council to release the information under article 5(3) of the AIE Regulations, which provides that:
“In the event of an imminent threat to human health or the environment, whether caused by human activities or due to natural causes, a public authority shall ensure that all information held by or for it, which could enable the public likely to be affected to take measures to prevent or mitigate harm, is disseminated immediately and without delay.”
31. In a telephone call with the Investigator in relation to this case and two other appeals, the appellant further explained that the request was necessary to establish from where the decision to authorise works originated. He argued that it was unclear from the available records what process was undertaken to authorise the works and in those circumstances, it was essential that his request be processed.
Does the exception in article 9(2)(a) apply in this case?
32. 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, I must 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. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy.
33. The AIE Regulations do not specifically provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available. However, I am satisfied that the scheme of both the AIE Regulations and the AIE Directive make it clear that there is a presumption in favour of release of environmental information. As such, I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on the public authority’s normal activities.
34. In this case, the Council stated only that searching for information would take a total of 80 to 100 man hours, and that processing the information would take a further 60 hours. Despite being asked specific questions by the Investigator about each part of the request, the Council failed to provide details in relation to each part of the request. The Council instead made a blanket estimate for the entirety of the request. The Council also failed to provide even a cursory estimate of the number of records that might fall under the scope of the request. It merely suggested that the issues at Lough Funshinagh had generated a “significant volume” of records.
35. While the Council argued that processing the request would cause an unreasonable interference in its work with no countervailing benefit to the public, it did not provide details on what work would be impacted. It also failed to provide details, despite specific queries by the Investigator, as to the impact of processing the request relative to the size of the Council more generally.
36. In the absence of these details, I consider that the Council has failed to show that the burden of dealing with the request would be particularly heavy, such that would meet the threshold for the request to be manifestly unreasonable in the context of its overall work.
37. The request is for specific correspondence between specific parties. It is also confined to specific date parameters. The period for which the appellant is seeking information is also recent enough that, in my view, it is likely to be held on easily searchable databases such as email accounts or postal registers. The Council failed to provide sufficient detail in that respect also, stating only that the information is held electronically and in hard copy.
38. In relation to the previous OIC case, highlighted by the Council in its submissions, it is important to note that FOI and AIE are two entirely separate legislative regimes with their own considerations. In particular, exceptions to release of information available under the AIE Regulations are to be applied restrictively, with the maximum possible information to be released. The case referred to by the Council also differs from the current one in that the Council had not refused to process the information, but rather had decided to charge a fee. In any event, no decision was made by the Commissioner in that case as it was informally concluded. I do not consider the comparison drawn by the Council to be relevant to my consideration of the current case and while I have considered the Council’s comments on that point, I do not accept them.
39. In addition, the exception in article 9(2)(a) is not intended to endorse any failure by public authorities to comply with their duties of dissemination of environmental information under article 5 of the AIE Regulations and Article 7 of the AIE Directive. Accordingly, it is relevant to consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
40. I note that in its submissions to this Office, the Council stated that it had published much of the information relating to Lough Funshinagh on its website and it provided links to the relevant web pages. When last accessed by this Office, however, much of that information appears to be inaccessible. I also note that this request relates particularly to correspondence relating to the Lough, rather than reports or other material that the Council might be likely to proactively publish.
41. It is important to note that the information sought relates to particularly contentious works on Lough Funshinagh, which have already been the subject of judicial review proceedings. Furthermore, as pointed out by the appellant, Lough Funshinagh is a designated Natura 2000 site under the Birds and Habitats Directive.
42. I note from the minutes of a Council meeting published on the Council’s website that the initial amount of water to be pumped from the Lough was 2 million cubic meters, but that Councillors were concerned as to whether this amount would be sufficient to remedy the flooding. The Aarhus Convention specifically envisages that decisions on groundwater abstraction or artificial groundwater recharge schemes where the annual volume of water abstracted or recharged is equivalent to or exceeds 10 million cubic metres should be subject to the public participation requirements in Article 6 of that Convention. Should any flood works approach this threshold, it is reasonable, in my view, that the Council should be prepared to provide access to information in relation to those works.
43. In the circumstances, given that the matters at issue have been the subject of court proceedings, and the situation is the subject of public scrutiny and media attention, I consider it reasonable that the Council ought to have the information organised in such a way as to be easily identified and processed in response to an AIE request. This may include advance consideration by the Council of whether exceptions would apply to any of the information if requested and whether the information to which any such exceptions apply may be separated from other information, in accordance with articles 8, 9 and 10 of the AIE Regulations.
44. Furthermore, the Council in this case has applied article 9(2)(a) as a blanket exemption. It did not provide the appellant or this Office with an estimate of the number of records at issue and it failed in its submissions to this Office to consider any parts of the request separately. It failed even to state which parts of the request would be most onerous. As mentioned above, the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, has made findings on when a public authority may be entitled not to examine the records at issue before refusing a request.
45. The Court stated that:
“it is only in exceptional cases and only where the administrative burden entailed by a concrete, individual examination of the documents proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required, that a derogation from that obligation to examine the documents may be permissible.”
46. The Council, in this case, has not provided details to justify why this is an exceptional case as envisioned by the CJEU. It has argued that identifying records would, in of itself, be manifestly unreasonable but it has failed provide details and supporting information. It is not sufficient for a public authority to merely state that the burden examining records would be particularly heavy, it must justify its position where it is departing from the “elementary duty” to examine the documents at issue.
47. On the facts of this case, and taking all of the above into account, my view is that the threshold for finding the request to be manifestly unreasonable has not been met. Accordingly, the Council was not justified in refusing the request on the basis of article 9(2)(a) of the AIE Regulations. I consider that the most appropriate course of action to take is to annul the decision of the Council and direct it to undertake a fresh decision-making process.
48. In light of my conclusion that the exception does not apply, it is not necessary for me to consider the public interest balance under article 10(3) of the AIE Regulations.
49. In processing the requests afresh, however, the Council should have full regard to the provisions of the AIE Regulations. In particular, the Council should carefully consider the specific public interest considerations arising in this case in favour of release of the information at issue, against the interests served by not releasing it.
50. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision. I direct it to carry out a fresh decision making process.
51. 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.
Ger Deering
Commissioner for Environmental Information