Decision
Mr D and Bord na Móna
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-146169-T9M1B8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-146169-T9M1B8
Published on
Whether Bord na Móna had provided the appellant with all information relevant to his request
14th October 2024
1. On 29 November 2023, the appellant made a request to Bord na Móna for the following information:
“Correspondence, meeting minutes and details of what observations raised by the submission of the Mid Shannon Wilderness Park Group, were made available to the environmental protection agency as part of the rehabilitation plans for Derryshannoge bog”.
The information was requested in digital format via an email address provided to Bord na Móna. The appellant also requested that should there be any additional records identified as part of such, they would also like to be provided with digital copies.
2. Bord na Móna did not respond to the appellant’s original request within the deadline provided for by the AIE Regulations.
3. On 3 January 2024, the appellant made an internal review request in the absence of an initial decision been made on foot of their original request of 29 November 2023.
4. On 17 January 2024, Bord na Móna issued a decision in relation to the appellant’s original request. It advised the appellant that one record exists, the Derryshannoge Bog Cutaway Bog Decommissioning and Rehabilitation Plan 2023, the relevant parts being Section 4 Consultation and in Particular, paragraphs 4.2.4, 4.2.5 and 4.2.6 and Appendix XI, Consultation summaries. Bord na Móna provided a link to the publicly available document: https://www.bnmpcas.ie/wp-content/uploads/sites/18/2023/05/Derryshannoge-Rehab-Plan-2023-V8-Final.pdf
5. On 6 February 2024, the appellant made an appeal to this office. In the appeal to this office the appellant submits, “Our appeal is based on the fact that in our email to BNM, we requested records under the Access to Information on Environmental Regulations relating to correspondence, meeting minutes and details of what observations raised by the submission of the Mid Shannon Wilderness Park Group, were made available to the environmental protection agency as part of the rehabilitation plans for Derryshannoge bog. “From what we have observed, there appears to be some details omitted in their [Bord na Móna] publicly available report,….. and we requested the above to clarify if these observations had indeed been brought to the attention of the EPA.”
6. 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 all parties to the 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’).
• The decision of the Court of Appeal in Redmond v Commissioner for Environmental Information [2020] IECA 83 (Redmond).
• The decisions of the Court of justice of the European Union (CJEU) in C-673/3 P European Commission v Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe); C-442/14 Bayer CropScience and Stichting De Bijenstichting V Collee voor de toelating van gewasbeschermingsmiddelen en biociden (Bayer); and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg);
7. The scope of this review is concerned with whether Bord na Móna carried out sufficient and adequate searches and released all information falling within the scope of the original request under article 7(5) of the AIE Regulations.
8. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. 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, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
9. On April 3 2024, Bord na Móna made preliminary submissions to this Office. Bord na Móna explained that its failure to issue an original decision in the appropriate timeframe was due to an oversight over the Christmas vacation period. The appellant sought an internal review request and was informed that on record existed, namely the Derryshannoge Bog Cutaway Bog Decommissioning and Rehabilitation Plan 2023. The relevant sections of the plan were advised to the appellant and a link provided to enable the appellant to access the information requested. The appellant made a further request for an internal review decision of the internal review and was directed by Bord na Móna to appeal to this Office as there was no provision under the AIE Regulations for a further decision by a public authority beyond the internal review.
10. The Investigator wrote to Bord na Móna requesting their observations/comments on foot of the submissions made by the appellant. The appellant maintains, from what they have observed, there appears to be some details omitted from their observations that do not feature in the report issued by Bord na Móna. The appellant made the request in the first instance to Bord na Móna to ascertain what observations raised by their submission were made available to the EPA. The Investigator requested that Bord na Móna detail the steps taken to search for the relevant records, particularly any records referenced above by the appellant.
11. On 24 July 2024, Bord na Móna responded. For ease of reference I will quote directly from the submission made by Bord na Móna:
• “In order to answer your request, I believe it would be beneficial to set out the procedure involved in the preparation and implementation of bog rehabilitation plans, to understand why no further records exist beyond the Derryshannoge Cutaway Bog Decommissioning and Rehabilitation Plan 2023.
• Derryshannoge Bog is the subject of an Integrated Pollution Control (IPC) licence granted to Bord Na Móna Energy Limited by the Environmental Protection Agency (EPA). One of the conditions of this licence is that Bord Na Móna Energy Limited are a fully detailed and costed plan for permanent rehabilitation of the cutaway boglands within the licensed area, which plan is submitted to the EPA for approval.
• The EPA has published a document entitled, “Guidance on the process of preparing and implementing bog rehabilitation plan”, which sets out the requirements for rehabilitation plans and the process to be followed. One of the requirements of a rehabilitation plan as set out at Condition 10.3.1 of the IPC licence is,“A scope statement for the plan; to include outcome of consultations with relevant Agencies, Authorities and affected parties (to be identified by the licensee)” .
• Paragraph 3.2 of the EPA’s “Guidance on the process of preparing and implementing a bog rehabilitation plan” sets out the process for reporting on the consultations conducted in the following terms:“The draft of a rehabilitation plan should set out what was said in submissions (verbal or written) by interested parties and what their expectations and desires are regarding bog rehabilitation. When interested parties’ ambitions stretch beyond rehabilitation (e.g. restoration, amenity, energy/industrial use) this should be described.”
• In addition, the draft rehabilitation plan should contain the licensee’s response to the points raised in submissions.
• It is important to note that the process does not envisage any separate communication with the EPA in respect of submissions made, other than as recorded in the draft rehabilitation plan, which as set out above entails including a summary of such submissions and the licensee’s response.
• In line with this process and as confirmed in Bord na Móna’ plc’s submissions dated 3 April 2024, there was no correspondence between Bord na Móna Energy Limited and the EPA with regard to any submissions of interested parties, including the appellant, in respect of the Derryshannoge Bog (beyond what is contained in the draft rehabilitation report). Further, nor were there any meetings between Bord na Móna Energy Limited and the EPA at which submissions from interested parties in respect of the rehabilitation of Derryshannoge Bog were discussed. The usual process of communicating submissions to the EPA solely via the draft rehabilitation plan was followed in respect of Derryshannoge Bog, which has been confirmed by Bord na Móna Energy Limited’s Environmental Manager.
• Therefore, for the avoidance of doubt no records exist nor have ever existed nor would be expected to exist in respect of the Appellant’s request, other than the draft rehabilitation plan itself, which is a publicly available document the Appellant has access to.
• Albeit not within the remit of the current appeal before the Commissioner, as the appellant appears to be alleging that aspects of the submission of the Mid Shannon Wilderness Park Group have been omitted from the draft rehabilitation plan, I have reviewed the correspondence from the Mid Shannon Wilderness Park Group, in an attempt to identify any such omissions, the appellant having failed to do so either in his correspondence with Bord na Móna plc., in respect of the AIE request or in his notice of appeal to the OCEI.
• Having reviewed the Mid Shannon Wilderness Group’s submission in respect of the draft rehabilitation plan dated 4 February 2023, I am satisfied that the points raised have been adequately summarised at Appendix II of the draft rehabilitation plan, together with Section 4.2, Issues Raised by Consultees at Sub-sections 4.2.4, Flooding and drainage, 4.2.5 Future management and 4.2. Other issues.
• If the appellant disagrees and believes there are matters which have not been addressed, I would ask him in the first instance to outline such issues to the relevant Bord na Móna Energy Limited personnel, with whom he engaged in relation to the rehabilitation of these lands, with a view to trying to reach a resolution.
• In respect of the appeal before the Commissioner, this relates solely to the existence or not of further records. As already has been explained, no further records beyond the draft rehabilitation plan exist nor have ever existed. Accordingly, in Bord na Móna plc’s submission, it has complied fully with its obligations in accordance with Article 7(1) of the AIE Regulations, no other information the subject of the Appellant’s request held either by or for it.”
12. The investigator wrote to the appellant on 6 August 2024 and advised the appellant that a response had been received from Bord na Móna confirming that all information in relation to the request made had been grant to them.
13. The appellant responded by return email on 6 August 2024, outlining a series of questions in relation to matters contained in the rehabilitation plan that he suggested remained unanswered. These specific questions were not part of the initial AIE request nor a part of the original appeal to this office and sought to interrogate the substance of the rehabilitation plan. This appeal is solely concerned with whether Bord na Móna provided the appellant with all information relevant to his original AIE request, and the subsequent questions raised by the appellant are not matters this Office can consider as part of this appeal. Moreover, Bord na Móna has suggested that if the appellant believes there are matters which have not been addressed, the appellant should outline such issues to the relevant Bord na Móna Energy Limited personnel, with whom they engaged in relation to the rehabilitation of these lands, with a view to trying to reach a solution. This is an avenue the appellant may wish to explore. It would also be open to the appellant to submit a new AIE request, if he wishes to do so.
14. Having regard to the details and explanations provided, I am satisfied that Bord Na Móna has taken adequate steps to identify and locate all relevant environmental information held by it, in respect of the appellant’s request. It is clear from Bord Na Móna’s internal review decision and their subsequent submissions to this Office, which is set out in some detail above, that it did indeed carry out reasonable searches in an attempt to resolve this matter. Having considered the description of the process for submitting the draft rehabilitation plan, I am satisfied that all information relevant to the appellant’s request was contained in the publically available document that Bord na Mona directed the appellant to in its decision.
15. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of Bord na Móna.
16. 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