Decision
Dr. Fred Logue c/o FP Logue Solicitors and An Bord Pleanála
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-142809-D8L5W4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-142809-D8L5W4
Published on
Whether ABP’s decision under article 7(3) of the AIE Regulations on the appellant’s request for certain information relevant to an identified casefile was justified.
1. On 23 August 2023, the appellant submitted an AIE Request to ABP, wherein it referred to “file 316716, which is a third party [large scale residential development] LRD appeal.” It commented that the developer in that case submitted a response to the LRD appeal on 28 April 2023 and according to a “correspondence form”, which it had attached to the AIE Request, “the documents were scanned to SB”. It noted that, therefore, under AIE, it was seeking access to:
a. The scanned documents referred to in the “correspondence form”
b. A description of what “scan to SB” means, including, for example if this is an in-house electronic data storage system etc.
2. The appellant also stated that it would like to receive the scans no later than 29 August 2023 “since they are urgently needed to advise a client and they are not available anywhere else in electronic format.”
3. On 24 August 2023, ABP acknowledged the appellant’s request, stating “a final decision on your request would normally be sent to you within one month of receipt of your request.”
4. On 30 August 2023, the appellant wrote to ABP, noting that it had requested that the information be provided by 29 August 2023. It asked for an update and stated that given the files “are readily available (the note on the file says that they had already been scanned) and needed urgently [it] was expecting them to be provided by now having regard to the AIE Regulation requirement to provide access to information as soon as possible.”
5. On 5 September 2023, ABP issued its original decision, wherein it referred to article 7(3) of the AIE Regulations and stated:
“In your AIE request you specified 316716 (a draft map appeal) however the correspondence form enclosed related to 316176 (an LRD appeal), we as such assume the former reference was a typo and respond with respect to 316176.
[ABP’s] internal employee portal is titled Surfboard. The ‘SB’ in the correspondence form refers to [S]urfboard, specifically a site within it used for document management by the initial administrative team supporting LRD appeals. As the administrative function for supporting LRD appeals scaled to meet operational needs it shifted to a new team with streamlined processes. The use of Surfboard for document management ceased. Resultingly [sic] this interim document management site is no longer operational and documents in the format requested are no longer in active use internally.
[ABP] can confirm this at the time contained only copies of subset documentation all of which is available on the statutory case file. The file is available via our public access service from 3 days following the decision and I include contact details below:
Public Access: [external-link publicaccess@pleanala.ie | publicaccess@pleanala.ie ]
We note you have requested access to environmental information in a particular manner, the information requested is already available to the public in another manner that [ABP] deems reasonable and easily accessible in line with section 7(3) of the AIE regulations. The other manner is via our public access service. Our public access team facilitate requests for decided case file documents such as 316176 which you requested, as these are already in the public domain. This team interface with our archival service as such are positioned to provide you the information requested in the most expedient manner.”
6. On the same day, the appellant sought an internal review of ABP’s decision. In doing so, it commented “that the letter states the documents are ‘no longer in active use internally’ but presumably they still exist or on another system maybe a permanent document management system”. It stated that, in any event, it will “accept new scans of the requested documents if the original scans cannot be located.”
7. On 3 October 2023, ABP issued its internal review decision, wherein it stated that it was affirming its original decision. ABP noted that the appellant’s request concerned the electronic copy of a case file ABP-316176-23 for a proposed development of 208 number social and affordable housing apartments and associated site works at Carlisle, Kimmage Road West, Terenure, Dublin 12. ABP stated that its decision on the case was made on 19 July 2023 and in accordance with section 146 of the Planning and Development Act 2000 (as amended) (the PDA), the file is available for public inspection and copies of documents from the case can be requested at the ABP offices or through its Public Access Service.
8. ABP referred to articles 7(3)(a)(i) and (ii) of the AIE Regulations and reiterated:
“…public access to this case file is already available to you under section 146 of the [PDA] as amended, and therefore you do not need to use the provisions of the AIE Regulations to request this documentation when it is already available via our Public Access Service.”
9. On 3 October 2023, the appellant submitted an appeal to this Office.
10. I have now completed a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between ABP and the appellant as outlined above and to correspondence between this Office and both ABP 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)
11. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
12. 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.
13. Article 7(2)(a) of the AIE Regulations provides “a public authority shall make a decision on a request and, where appropriate, make the information available to the applicant as soon as possible and, at the latest, but subject to paragraph (b) and subarticle (10), not later than one month from the date on which such request is received by the public authority concerned.” Article 7(10) of the AIE Regulations provides a public authority shall, in the performance of its functions under this article, have regard to any timescale specified by the applicant. Article 11(3) of the AIE Regulations provides that an internal review decision “shall be notified to the applicant within one month from receipt of the request for the internal review.”
14. In its original request, the appellant specified a particular timescale. While the appellant followed up with ABP regarding that timescale prior to ABP’s issuing of the original decision, it made no reference to the timescale or ABP’s consideration of that timescale in its internal review request, which simply stated: “Please carry out an internal review. I note that the letter states the documents are ‘no longer in active use internally’, but presumably they still exist or are on another system maybe a permanent document management system. In any event I will accept new scans of the requested documents if the original scans cannot be located.”
15. ABP made no reference to the timescale indicated by the appellant in either its original or internal review decisions. However, having examined the wording of the appellant’s internal review request, I am satisfied that it was reasonable for ABP not to consider any issue involving article 7(10) of the AIE Regulations and the timescale specified by the appellant as coming within the scope of the matter at internal review.
16. A review by this Office is limited in scope by the wording of an appellant’s internal review request and, while it can be narrowed further, it cannot be expanded. Accordingly, while the appellant, in its submissions to this Office referred to ABP’s consideration of the timescale it had specified in its original request, stating that ABP “breached” article 7(10) by not having regard to it and that it had also breached article 7(2)(a) “by not making a decision as soon as possible”, I cannot consider those issues to be within the scope of this review. Nonetheless, I acknowledge that while ABP did not issue the original decision within the timeframe specified by the appellant in its original request, it did issue it issue it within two weeks of receipt after follow-up correspondence from the appellant.
17. However, I do note that the appellant also contended to this Office that ABP breached article 11(3) of the AIE Regulations “for the same reason” i.e. “by not making a decision as soon as possible.” It is important to note that article 11(3) of the AIE Regulations, in contrast to article 7(2)(a) and 7(10) of the AIE Regulations, which concern the original request and decision, provides that an internal review decision “shall be notified to the appellant within one month from receipt of the request for the internal review” and makes no reference to “as soon as possible” or to any requirement to “have regard to any timescale specified by the appellant”. In any event, in this case, ABP issued the internal review decision within one month of receipt of the internal review request.
18. In all the circumstances, I am satisfied that the scope of this review solely concerns whether ABP’s decision under article 7(3) of the AIE Regulations on the appellant’s request for certain information relevant to an identified casefile was justified.
19. I note that ABP’s internal review decision included the following section “Application for Review of Decision to the Information Commissioner” wherein it stated:
“In the event that you wish to make an application to the Information Commissioner for a review of this decision, you can do so by corresponding with the Office of the Information Commissioner, by email or online. You should include a fee if one is payable for processing the application for review. You should make your application within 6 months from the date of this notification. However, the making of a late application may be permitted in appropriate circumstances.”
20. The right of appeal set out in ABP’s internal review decision refers to an appeal to the Office of the Information Commissioner under the Freedom of Information Act 2014, rather than an appeal to the Office of the Commissioner for Environmental Information under the AIE Regulations. These are distinct statutory regimes which differ in a number of respects. In particular, the timeframes vary greatly between the two regimes.
21. Indeed, under article 12(4)(a) of the AIE Regulations, an appeal to this Office must be initiated not later than one month after the decision of the public authority under article 11(3) (generally the internal review decision) has been received by, or was required to be notified to, the applicant/appellant. This contrasts significantly with the 6-month appeal period provided for in the FOI regime which is referred to in ABP’s internal review decision. While it is open to this Office, under article 12(4)(b) of the AIE Regulations, to extend the time limit for initiating an appeal where, in the circumstances of a particular case, it is reasonable to do so, ABP should ensure that it complies with its obligations under article 11(4)(b) of the Regulations to provide the correct details to requesters on their right of appeal under the AIE Regulations.
22. I also wish to note that it is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal.
23. The general thrust of the appellant’s position is that ABP’s decision under article 7(3) of the AIE Regulations was not justified. The appellant provided detailed submissions to this Office in support of its position. While I do not propose to repeat them in full here, I can confirm that I have had regard to them.
24. ABP’s original and internal review decisions relied on article 7(3) of the AIE Regulations in directing the appellant’s request to its Public Access Service for access to the information sought. In its submissions to this Office, ABP provided further details in support of its decisions, which I have summarised below:
a. ABP gave an overview of how it facilitates access to decided casefiles as follows:
(i) ABP stated that its practice is to keep all records relating to a planning case within a single case file. ABP stated that after it makes its decision, the entire decided case file is retained. ABP noted that the most recent case files are held onsite and older case files are held offsite.
(ii) ABP stated that in accordance with the PDA, the case file becomes a matter of public record three days after it makes a decision. ABP explained that the Board Order, Board Direction, and Inspectors Report of a case are published on its website www.pleanala.ie on the individual case page.
(iii) ABP stated that its Public Access Service facilitates the public viewing of decided case files and the provision of copies of documents from those case files, where required. It stated that this is in accordance with section 146(5) of the PDA. It also referred to section 146(6) of the PDA.
(iv) ABP stated that it takes measures to make information available progressively by electronic means, however with “due consideration to the Planning and Development Act 2000, the physical paper file remains the official record.” It reiterated that its Public Access Service facilitates members of the public to view and make copies of documents on decided case files.
(v) ABP explained that the Public Access Service is available at 64 Marlborough Street, Monday-Friday from 9:15 to 17:30, excluding bank holidays.
(vi) ABP stated that the case files “typically range in size from hundreds to thousands of pages dependant on case type and nature. The implication here is every time access is facilitated for requests to duplicate partially/fully the file via photocopying or scanning for electronic means, the actual physical file is handled by administrative staff to ensure any modifications or additions on the file at that juncture are captured in the duplications.”
b. ABP also referred to the particular matter at issue, as follows:
(i) ABP stated that its internal portal based on SharePoint titled Surfboard (‘SB’) initially had a page that was used for administrative functions of the team supporting LRD appeals. It noted that the administrative function for supporting LRD appeals was scaled to meet operational needs and it shifted to a new team with streamlined process. It stated that its processing appeals team now handles all LRD appeal cases and they do not use Surfboard for this purpose. It stated that the use of Surfboard for document management for these LRD appeals ceased with restructuring. It outlined that resultantly, this interim document management site is no longer operational. It submitted that the documents in the format requested are no longer available, however they can be facilitated through the Public Access Team. It outlined that neither the LRD team nor the former staff who dealt with LRD have access to the site.
(ii) ABP stated that it can confirm that the Surfboard page contained only copies of a subset of documents (applicant documents, copies of valid submissions received, file memos, and copies of decision letters) all of which are available, amongst other documents, on the statutory case file, which is available via its Public Access Service from three days following a decision. ABP stated that these documents include the record specified in the correspondence form “the applicant’s response”, which formed the basis of the AIE Request. ABP stated that, therefore, as the information was already available in another format, it invoked article 7(3) of the AIE Regulations and directed the appellant to its Public Access Team.
(iii) ABP stated that the appellant was not refused access to the documents. ABP outlined that it is of the opinion that access to the casefile in the manner proposed through its Public Access service is reasonable and in accordance with article 7(3) of the AIE Regulations.
25. During the course of this review, the Investigator wrote to ABP and referred to articles 7(1) and 7(3) of the AIE Regulations. She noted that it was her understanding that in relying on article 7(3) and in giving access to relevant information by way of its Public Access Service, ABP required the appellant to sign the Declaration Form and accept all of the terms contained therein. She also noted the appellant’s contention that ABP cannot channel requests into a public access procedure that does not comply with the AIE Regulations under the pretext of article 7(3) of the AIE Regulations. She further outlined that it was the general thrust of the appellant’s position that ABP’s decision under article 7(3) of the AIE Regulations is not justified in circumstances where, in being given access to relevant information through the Public Access Service, it must accept the terms.
26. In response, ABP commented that article 7(1) of the AIE Regulations “mandates that public authorities make environmental information available upon request”. It stated that in its efforts to adhere to this requirement, it provides access to environmental information through various mechanisms, including its public access service. It noted that article 7(3)(a) of the AIE Regulations allows a public authority to provide access to environmental information in a form or manner different from that requested if the information is already accessible to the public in another form or if providing it in the requested form would be unreasonable. It stated that its website offers a key subset of documents such as the Inspector’s Report, Board Direction, and Board Order, which can be downloaded for free.
27. ABP stated that each AIE request received is assessed on its own merits. It outlined that for requests that seek records on decided public case files, it directs these requests to its public access service. It stated that the public access team searches and retrieves files, interfaces with its archival facilities, photocopies files, and provides the requester with the requested documents in a timely manner. It explained that this ensures that requests for comprehensive case files, which may include a large volume of documents, are managed efficiently. It commented that this approach allows it to maintain a structured system for providing access while conserving resources and avoiding duplication of efforts.
28. Regarding the Declaration Form, ABP stated that it plays an important role in its record-keeping efforts while ensuring adherence to statutory obligations and safeguarding the confidentiality of information accessible through its public access service. It stated that “[t]his is especially important given the presence of personal data and copyrighted materials within case files, which include sensitive personal information such as names, and addresses of parties to a case, in addition to materials protected under the Copyright Act such as maps. By asking members of the public to complete the Declaration Form, we ensure adherence to both the Copyright and Related Rights Act and Data Protection Regulations, thereby informing individuals of their responsibilities when accessing these files.”
29. ABP further submitted that “[i]t’s important to note the Declaration Form does not impede, nor does it preclude individuals from accessing or inspecting these files in accordance with the guidelines outlined in [the PDA].” It stated that members of the public retain the option to view these records at our offices without the requirement to complete this form. It noted that the Declaration Form reinforces its commitment to responsible information management and legal compliance while promoting transparent access to significant public records.
30. ABP explained that the Declaration form is a standard procedure within its public access service aimed at ensuring users comply with legal obligations, including those related to copyright and data protection. It referred to section 74(4) of the Copyright and Related Rights Act, 2000, which, it noted, states:
“Material may not be provided under this section unless the person granting access to the material has obtained from the person requesting the material a declaration, in such form as may be prescribed, indicating that the material is required for the sole purpose of enabling the material to be inspected at another time or place or to otherwise facilitate the exercise of the right of public inspection.”
31. ABP stated it facilitates the right of public inspection as is a statutory obligation of ABP under section 146 of the PDA, which, it noted, states: “The documents relating to any appeal or referral or to a decision of the Board under section 175 or Part XIV shall be made available at the offices of the Board for inspection by members of the public”
32. ABP went on to note that the Inspectors Report, Board Order, and Direction are published on case pages. It stated that these are documents that have been created by ABP and are not subject to restriction, they are published online to fulfil the requirements of section 146 of the PDA.
33. ABP noted that Declaration form includes terms that: acknowledge potential copyright restrictions, ensure responsible use of personal data, and prohibit unauthorised sharing or publication of information. It reiterated that these measures are in place to protect sensitive information and adhere to legal requirements, “rather than to restrict access improperly”, and the Declaration Form serves as a reminder to users of their responsibilities when handling the information provided.
34. ABP stated that that it is its position that reliance on article 7(3) is justified as the information is accessible via its Public Access Service in a manner that is reasonable and already available to the public. It stated that the Public Access Service is a practical and effective method for providing comprehensive access to its case files, and the Declaration Form is a necessary part of ensuring compliance with legal standards.
35. ABP stated that it assesses requests on a case by case basis. It outlined that it aims to accommodate reasonable requests in line with the AIE Regulations and it has systems in place to handle special cases or exemptions when appropriate. It noted that it is committed to transparency in its processes. It commented that the terms outlined in its Declaration Form are clearly stated and aim to balance access to information with necessary safeguards. It reiterated that these terms are not intended to act as barriers to access but rather to ensure information is handled responsibly. It submitted that its current procedures provide a fair and reasonable method for public access to environmental information while ensuring compliance with legal and regulatory requirements.
36. In further correspondence, the Investigator sought additional information from ABP. The Investigator’s queries and ABP’s responses are summarised below.
a. The Investigator asked whether, notwithstanding that the hard copy case file is considered to be the “official file”, information relating to case files is only held in hard copy or if it is also held electronically. She also asked that if the information is also held electronically for a description of the relevant systems/databases etc. In response, ABP noted that case 316176 relates to a Large Residential Development (LRD). It stated that the format “is subject to the Planning and Development (Large Scale Residential Developments) Act 2021 and the Planning and Development Act 2000, as amended.” It went on to list the following regarding the relevant records the management of those records:
i. Appeal records: Hard copy only.
ii. Submission/observation records: Hard copy only.
iii. Received correspondence: Hard copy only.
iv. Issued correspondence: Hard copy only. Letters are generated unsigned in soft copy
v. Other documents (forms, memos, etc.): Hard copy only.
vi. Inspectors Report: Hard copy and on decision soft copy via website www.pleanala.ie.
vii. Board Order and Direction: Hard copy and on decision soft copy via website www.pleanala.ie .
b. The Investigator asked whether, notwithstanding that, the hard copy case file is considered to be the “official file”, ABP could confirm if any of the information sought is held electronically by ABP. She asked ABP, in doing so, to identify which information is/is not held electronically and to clarify where the information is held electronically (e.g. what systems/databases, etc). ABP referred back to point (iii) of the list made at paragraph (a) above. It also stated “[i]n an interim period on the inception of LRD, the team handling followed a procedure equivalent to SHD i.e. soft copy via an internal SharePoint site. At the time of the request, procedures were finalized. Soft copies are no longer available or maintained with the transition to a new team.”
c. The Investigator asked ABP to explain how information is received by it regarding case files. She asked whether information can only be sent to ABP in hard copy, or if it can also be sent electronically (she noted that ABP’s website indicates, for example, that observations on LRD planning appeals can be made online)? She queried whether, if information is received in hard copy, it is also scanned onto an electronic system and, if information is received electronically, where that information is received and stored. In response ABP stated the following:
“Members of the public can submit observations online via our website, a new process available for all case types where a fee is required. For cases without a fee, observations may be submitted via email. Additionally, hard copy observations can be sent by post or delivered directly to our offices.
For SHD and SID case types, when hard copy observations are received, they are scanned to create electronic copies, which are then stored in the SharePoint site. The original hard copies are retained as part of the physical case file. Documents received electronically, whether through online submission or email, are directly uploaded to SharePoint as well as maintained on the physical file. This approach ensures that both electronic and hard copy versions are available and facilitates accessibility for all case files. The LRD and appeals section do not use SharePoint for this purpose, observations are printed and maintained on a hard copy case file.
Case type: Strategic Housing Development (SHD), Strategic Infrastructure Development (SID)
• The Application records are received via hard copy in person/post and soft copy via USB and subsequently stored on an internal SharePoint site.
• Any submissions/observations received are in hard copy in person/post and/or soft copy, regardless of means are also stored electronically via an internal SharePoint site.
Case type: Large Residential Development (LRD) and appeals
• The Appeal records are received via Hard copy only in person/post.
• Any submissions/observations can be received via hard copy in person/post or soft copy via our online portal. Online copies are printed out and placed on hard the physical case file.”
d. The Investigator asked ABP to explain how information is given to the Board when considering a case file – she asked whether this is done electronically or if each member of the Board is given a hard copy file. In response, ABP stated “[t]here is only one physical file for each case, which is provided to the lead Board Member assigned to the case. This lead Board Member is responsible for presenting the hard copy file at the Board meeting.”
e. The Investigator noted that “Surfboard” is no longer in operation – she asked whether the information that had been scanned to “Surfboard” was transferred to another document management system / another electronic system. ABP stated “[t]he information was not transferred to any other documents management system, it only existed in hard copy.”
f. The Investigator provided details regarding this Office’s interpretation of article 7(3) of the AIE Regulations (discussed in further detail in the Analysis and Findings section below). She also outlined her view that in circumstances where the appellant must accept the terms and conditions contained in ABP’s Declaration Form in advance of providing information through the public access service, she was intending to recommend to the Commissioner that a finding is made that ABP’s decision under article 7(3) of the AIE Regulations was not justified. In response ABP stated:
“…signing the Declaration Form is not, and has never been, a prerequisite for accessing case files. In practice, there have been instances where requestors have opted not to sign the form yet were still provided with the information they sought. Our commitment remains firmly in upholding the rights of requestors and ensuring transparency throughout our processes.
In light of your feedback, we are reviewing the wording of the Declaration Form to prevent any potential misinterpretation and to ensure that it fully aligns with the principles of the AIE Directive, particularly regarding the importance of unrestricted public access to environmental information. It is crucial to emphasize that An Bord Pleanála has never restricted access to case files based on whether or not a requestor signs this form; access has always been granted regardless of the decision to sign.”
37. Article 6(1)(e) of the AIE Regulations provides that if an applicant desires access to environmental information in a particular manner, the request shall specify the form or manner of access desired. In this case, the appellant requested access to scans of scanned documents relevant to an identified case. Accordingly, I am satisfied that the appellant specified the form/manner of access desired in accordance with article 6(1)(e) of the AIE Regulations.
38. Article 7(1) of the AIE Regulations provides a public authority shall, notwithstanding any other statutory provision and subject only to the AIE Regulations, make available environmental information that is held by or for them on request. Article 7(3)(a) of the AIE Regulations provides that 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. Article 7(3)(b) provides that 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.
39. I wish to highlight that article 7(3) of the AIE Regulations can only be considered where a public authority has identified relevant information held by or for it, determined that information should properly be released (i.e. that no exemption provision in article 8 or 9 of the AIE Regulations (subject to article 10) applies), and has then decided to give access to that information other than in the form or manner requested.
40. Article 7(3)(a) of the AIE Regulations transposes part of Article 3(4) of the AIE Directive, which provides that where an applicant requests a public authority to make environmental information available in a specific form or format (including in the form of copies), the public authority shall make it so available unless (a) it is already publicly available in another form or format which is easily accessible by applicants or (b) it is reasonable for the public authority to make it available in another form or format, in which case reasons shall be given for making it available in that form or format.
41. Article 3(4) of the AIE Directive goes on to state “[f]or the purposes of this paragraph, public authorities shall make all reasonable efforts to maintain environmental information held by or for them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means”. This wording, which is reflective of Article 5(3) of the Aarhus Convention, was not transposed by article 7(3) of the AIE Regulations. However, I do note that article 5(1)(b) of the AIE Regulations states that a public authority shall “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”.
42. It is important to note that it is not within the Commissioner’s powers to examine the implementation of article 5(1)(b) of the AIE Regulations by public authorities generally. However, a public authority’s implementation of article 5(1)(b) of the AIE Regulations may impact its ability to rely on article 7(3) of the AIE Regulations. In cases involving article 7(3) of the AIE Regulations this Office may consider whether the particular information requested is the kind of environmental information that one would expect to be maintained in a manner that is readily reproducible and accessible electronically. Greater implementation of article 5(1)(b) of the AIE Regulations by a public authority, may increase the likelihood that article 7(3) of the AIE Regulations can be relied upon or that information can be obtained by members of the public without the need to submit an AIE Request. It is also of note that, while a public authority can only engage article 7(3) of the AIE Regulations where it has been determined that the information should properly be released under the AIE Regulations, the AIE Regulations are just one access regime and there is nothing in the AIE Regulations which precludes a public authority from providing access to information outside the regime, even if access would be denied as a result of one of the exemptions in the AIE Regulations.
43. The appellant in this case requested access to scans of scanned documents relevant to an identified case file. In its original and internal review decisions, ABP relied on article 7(3) of the AIE Regulations to direct the appellant’s request to its Public Access Service. In its submissions to this Office, ABP further stated that it had not refused access to the documents.
44. I note that ABP’s website contains a section that explains the Public Access Service and the procedure for viewing decided case files. Among other things, the website, as also indicated in ABP’s submissions, states that certain documents can be viewed and downloaded from ABP’s website for free – the Inspector’s Report, Board Direction, and Board Order. It also states that the full case file can be accessed through its Public Access Service, however this is subject to the acceptance of terms by way of a Declaration Form . The Declaration Form states that it needs “to be completed before a case file can be photocopied or photographed” and “does not apply to Inspector’s Report, Board Direction and Board Order.” Public Access Guide , available on ABP’s website, also states that the Declaration Form needs to be signed before viewing a file. I note ABP’s comments in its submissions to this Office that the signing of the Declaration form is not a pre-requisite for accessing case files and there have been instances where requesters “have opted not to sign the form yet were still provided with the information they sought”, that it is reviewing the Declaration Form “to prevent any potential misinterpretation and to ensure that it fully aligns with the principles of the AIE Directive, and that it “never restricted access to case files based on whether or not a requester signs [the Declaration Form]”. However, having regard to the information on ABP’s website regarding the manner in which the public access service operates, it would appear to me that in this case the appellant had no reason to doubt that the signing of the Declaration Form was required in order to receive electronic copies of the information sought. Furthermore, while ABP indicated that it was updating its terms, it provided no indication as to what those changes would be or when they would be implemented. I am satisfied that in this particular case ABP, in relying on article 7(3) and in giving access to electronic copies of the scans of the relevant information by way of its Public Access Service, required the appellant to sign the Declaration Form.
45. Having examined the Declaration Form currently available on ABP’s website I note that it asks that the signatory confirms that they have read and consent to the following terms:
1. “I accept that photocopies or photographs from An Bord Pleanála case file with the above case number, are made available to me under section 146, subsections (5) and (6) of the Planning and Development Act 2000, as amended. They are or may be subject to copyright or related rights.
2. I accept that under section 74, Copyright and Related Rights Acts, as amended, material is provided to me by An Bord Pleanála for the purposes of inspection and no other use of the material may be made without the licence of the copyright owner.
3. I agree to the conditions set by An Bord Pleanála that I may photograph certain documents on the case file except plans, maps and other documents on which there are copyright restrictions or restrictions placed by An Bord Pleanála.
4. I accept not to copy, publish, share, upload, or make public by any means (this includes electronic means such as social media or internet) copies or photographs of documents on the case file provided to me for my personal inspection.
5. I understand that it is my responsibility under Data Protection legislation to make sure that any personal data contained in any case file which I view is used only for my own personal inspection. I will not use any personal data for any reason except for my own personal inspection. I will not use any personal data in a manner which could cause damage or distress to the subjects of the data.
6. I agree that the personal data that I gain access to will not be disclosed to any individual. I will make sure to protect from unauthorised disclosure to any party, any copies of material or notes which I may have during my inspection of the case file. When I no longer require the information in the copies or notes I have, I will dispose of the information in an appropriate manner.”
46. Although ABP stated that in directing the appellant’s request to its Public Access Service, it had not refused access to the relevant documents, notwithstanding its recent comments regarding that it may not have been necessary for the appellant to sign the Declaration Form and it was updating its terms, I am satisfied, as noted above, that in this particular case ABP required the acceptance of terms prior to release of the scans. ABP did not inform the appellant that he could “opt out” of signing the Declaration Form, as alluded to in its correspondence. Having examined those terms, I note that release under the AIE Regulations is release to the world at large and access cannot be given subject to the acceptance of such terms, which include restrictions regarding the use and making public of the information concerned. Given the nature of the terms I would also like to recall the purpose of the AIE Regime as set out in Recital 1 of the AIE Directive, namely “increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.” A person who received environmental information on foot of a request must be free to circulate that to others who might have an interest in the information. I therefore find that ABP should not have required the appellant to sign the declaration form when granting him access to information under the AIE Regulations.
47. In circumstances where the appellant must accept the terms and conditions contained in the declaration form in advance of providing information through the Public Access Service, I cannot find that ABP’s decision under article 7(3) of the AIE Regulations was justified.
48. I consider that the most appropriate course of action to take at this stage is to annul ABP’s decision under article 7(3) of the AIE Regulations. In circumstances where ABP has made no submissions regarding the application of any of the exemption provisions provided for under the AIE Regulations, I direct ABP to release electronic copies of the scans of all of the information relevant to the appellant’s request.
49. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul ABP’s decision in this case. I direct ABP to release electronic copies of the scans of all of the information relevant to the appellant’s request.
50. 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