Decision
Dr Fred Logue and Kildare County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132434-G6B5K3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132434-G6B5K3
Published on
Whether the Council is entitled to rely on article 7(3) of the AIE Regulations in relation to the appellant’s request
8 February 2024
1. Section 7 of the Planning and Development Act 2000 (as amended) requires a planning authority to maintain a planning register. It also sets out categories of information which must be included on that planning register at section 7(2)(a) to (z), including, particulars of any planning application made, the complete decision of the planning authority and/or An Bórd Pleanála on application and any conditions imposed, particulars of any declaration or decision made under section 5 of the Act as to whether development is exempted development and particulars of any enforcement notice issued or enforcement action undertaken.
2. On 16 August 2022 the appellant wrote to Kildare County Council requesting information under the AIE Regulations. This request, was to ascertain “what information from the planning register is available online and where information is made available online whether information is excluded and/or whether it is made available online on a temporary basis”. As part of this request, an Excel spreadsheet was provided to the Council containing relevant fields to be completed by the Council (roughly corresponding to the information listed at section 7(2)(a) to (z) of the Planning and Development Act). This included a field indicating where the information sought could be found online through the provision of a URL link. The request also asked the Council to set out any information excluded from the information available online along with the basis for such exclusion and to indicate where information was published temporarily, the duration for which it was published and the basis for temporary publication.
3. From the records before me, it appears that the Council did not acknowledge the appellants original request for information and consequently no Original Decision was issued by the Council.
4. On the 19 September 2022, the appellant requested an Internal Review on the basis of an implied refusal.
5. The appellant appealed to this Office on 19 October 2022 on the basis of the Council’s failure to response to his request for an internal review. Following the intervention of this Office, the Council issued a Final Decision letter to the appellant on 14 November 2022. This letter informed the appellant that “the information sought is exempt under [article 7(3)(a)(i) of the AIE Regulations] as the information is available on the online planning system at http://webgeo.kildarecoco.ie/planningenquiry”. The Council went on to note that it was “endeavouring to make further datasets available during the course of 2023” and that ”all documentation not available on-line at the current time are available to view in the public offices at Aras Chill Dara, Naas”.
6. On 17 November 2022, the appellant indicated to this Office that he was not satisfied with the Council’s decision and wished to continue with his appeal.
7. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and Kildare County 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’).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. 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. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
9. The Council has relied on article 7(3)(a)(i) of the Regulations in support of its position that it has adequately responded to the appellant’s request by providing him with information in an alternative form or manner. , My decision in this case is concerned with whether the Council was justified, under article 7(3)(a)(i) of the Regulations, in refusing access to the information requested by the appellant in the form or manner requested by him. In the interests of efficiency and completeness, I will also consider whether article 7(3)(a)(ii) of the Regulations applies in the circumstances of this case. I am satisfied that this Office has jurisdiction to do so, as the Court of Appeal has made clear in Redmond v Commissioner for Environmental Information [2020] IECA 83, that proceedings before this Office are “inquisitorial rather than adversarial in character” and “the extent of the enquiry is determined by the Commissioner, not by the parties” (paragraph 51). In addition, the High Court in M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information [2020] IEHC 430, made it clear that the Commissioner “enjoys a wide jurisdiction to conduct a de novo consideration of a request for access to environmental information”. I also note in this regard that the Council was provided with an opportunity, in the request for submissions sent to this Office, to set out its position on the application of article 7(3)(a)(ii) but did not do so. The appellant’s submissions make reference to the reasonableness of the Council’s position so I am satisfied that no prejudice to the parties arises as a result of my consideration of article 7(3) as a whole.
10. I wish to express my regret that there has been a considerable delay in the resolution of this appeal. I acknowledge that some of the delay experienced has been due to resourcing issues in this Office and steps are being taken to address these issues.
11. I wish to comment that it is unacceptable that the Council would fail to provide any response to the appellant’s request until the intervention of this Office. The Council is subject to a clear duty, set out in articles 7(2) and 11(3) of the Regulations, to provide responses to requests within one month of their receipt. It is also subject to a duty to give reasons for its decision. This arises, not only by virtue of articles 7(4) and 11(4) of the AIE Regulations (and, in this case, article 7(3)(b)), but is also a core principle of administrative law and a fundamental element of constitutional justice. The Courts, and the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal (see, for example, Right to Know v An Taoiseach [2018] IEHC 372, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bórd Pleanála [2019] IESC 90). This duty arises so that a requester can take a view as to whether they consider the position of the public authority to be justified, or whether they wish to exercise the entitlement to have that position reviewed. I would therefore encourage the Council to take steps to engage more fully with the AIE Regulations and with this Office in the future .
12. Article 7(3) of the AIE Regulations provides as follows:
(a) Where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless –
(i) the information is already available to the public in another form or manner that is easily accessible, or
(ii) access in another form or manner would be reasonable.
(b) Where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefore shall be given by the public authority in writing.
In this case the appellant requested specific information from the Council on what parts of the planning register, as maintained by the Council, were available online as well as specific URL links indicating where each category of information set out in section 7(2) of the Planning and Development Act could be found. The Council provided the appellant with a generic link to the general planning section of the Kildare County Council website on the basis that the information sought was available on its online planning system while at the same time admitting that not all planning documentation was available online but could be viewed instead at its public offices.
13. The AIE Regulations make it clear that the default position is that an appellant is entitled to be provided with information in the form or manner requested. It is only possible to depart from that default position where the requirements of article 7(3)(a) are satisfied. In order for article 7(3)(a) to apply, it must therefore be established either:
(i) that the information requested by the appellant was already publicly available in an easily accessible form or manner; or
(ii) that the access provided by the Council was reasonable.
14. The first question I must consider therefore is whether it can be said that the information requested by the appellant was already publicly available in an easily accessible form or manner.
15. It is important here to consider the appellant’s request. What the appellant is seeking is information as to what elements of the Council’s planning register are available online. He has provided the Council with an Excel sheet indicating the form in which he wishes that information to be provided. The Council has instead provided him with a link to its website and informed him that the information requested “is available on its online planning system”. In the same decision, however, the Council has also suggested that not all of the categories of information listed in his request would be available on that website but that any such information would be available in its public office and that it is “endeavouring to make further datasets available”. The Council has therefore sought to argue that it is entitled to rely on article 7(3)(a) on the basis that the information requested by the appellant is already publicly available in an easily accessible form or manner while at the same time suggesting that all of the information requested is not, in fact, publicly available.
16. It is the case that the appellant could conduct searches of the Council’s planning website and, assume, if he cannot find information on certain categories included in his request, that this is because those categories have not been published. However, it cannot be said, in my view, that such information would be “easily accessible” as it would be difficult for the appellant – who, unlike the Council, will not be aware of the internal systems and protocols applying to online publication - to reach a definitive conclusion as to whether the information had not been published or whether his searches had been unsuccessful in locating it. I reach this conclusion having regard to the fact that the decision of the Supreme Court in National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 makes it clear that the Regulations are to be interpreted teleologically. Articles 3(5) and 7 of the AIE Directive make it clear that arrangements must be in place to ensure the public are adequately supported in seeking access to information and that public authorities take steps to ensure that access can be effectively exercised.
17. The second part of the appellant’s request asked the Council to set out any information excluded from the information available online along with the basis for such exclusion and to indicate where information was published temporarily, the duration for which it was published and the basis for temporary publication. If the appellant were to conduct his own searches using the generic link provided by the Council and find, as the Council has already admitted, that certain information is not available, he would need to follow up with the Council to be provided with the explanations he has sought as part of his request. All of the information he has requested is therefore not publicly available.
18. I am therefore not satisfied, on the basis of the information before me, that the information requested by the appellant is already publicly available in another form or manner that is easily accessible and it is therefore not possible for the Council to rely on article 7(3)(a)(i) of the AIE Regulations in the circumstances of the present case.
19. The next question to consider is whether the form or manner in which the Council has responded to the appellant’s request is reasonable. The Council has provided no reasoning either to this Office or to the appellant which supports the conclusion that it is reasonable to provide a generic link instead of specific indications of where the relevant categories of information are available online or, indeed, whether they are available online at all.
20. The Council also appears to have suggested that it would be open to the appellant to review its planning website to ascertain for himself the categories of information which have been published on that website. It is not clear to me why it would be reasonable to expect the appellant to carry out this task, rather than the Council. In the first instance, the Council will be more familiar with the contents of its own website than the appellant. Secondly, as outlined above, the appellant is less likely to be able to reach a definitive conclusion as to what is available on the Council’s website than the Council itself. I also note in this regard that the appellant submits that he issued the same request to thirty-one local authorities and twenty-four have provided him with a response in the form or manner requested. This, in and of itself, is not the decisive factor in this case but in circumstances where (i) the Council has suggested that it would be possible for an individual requester to obtain individual URL links by searching its website, (ii) twenty-four other councils have been able to provide satisfactory responses to the appellant’s request, (iii) there is no other information before me to suggest a basis on which it would be reasonable to expect the appellant to search for the information he seeks on the Council’s website and (iv) it is clear that such a search would not necessarily provide the appellant with the entirety of the information he seeks, I am not satisfied that the provision of access in the form proposed by the Council is reasonable.
21. I am therefore not satisfied, on the basis of the information before me, that the provision of access in the form proposed by the Council is reasonable and it is therefore not possible for the Council to rely on article 7(3)(a)(ii) of the Regulations in the circumstances of the present case.
22. I am satisfied, for the following reasons, that it is reasonable, and within this Office’s jurisdiction to direct the Council to provide the appellant with the information he has requested in the form requested by him:
(i) Article 12(5)(c) of the Regulations provides this Office with jurisdiction “where appropriate” to “require the public authority to make available environmental information to an appellant”.
(ii) Article 7(3) of the Regulations makes it clear that a public authority shall provide information in the form or manner requested by an appellant unless it can demonstrate that the limited exceptions provided for in that article apply. Having conducted a review of the application of article 7(3) in its entirety, for the reasons outlined at paragraph 9 above, I consider that the Council has not demonstrated that either of the exceptions contained in article 7(3) apply in the circumstances of this case.
(iii) Article 5(1)(b) makes it clear that there is an obligation on public authorities to make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means.
(iv) The request itself asks the Council to indicate and demonstrate what aspects of the planning register (which it is required under the Planning and Development Act to make publicly available) are available online and the Council has indicated that a significant portion of the information can be ascertained from a search of its website. I therefore do not consider it necessary to remit the matter to the Council for fresh consideration and am of the view that doing so would provide it with what would, in my view, be an unwarranted opportunity to provide reasons for its refusal to provide the information in accordance with its obligations under article 7(3) in circumstances where it failed to provide those reasons both in its interactions with the appellant and in the course of engagements with this Office.
24. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision and direct it to provide the information requested by the appellant to him in the form and manner requested.
25. 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