From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/09/0014
Published on
Appeal to the Commissioner for Environmental Information
European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)
Appellant: Mr. Tony Lowes, Friends of the Irish Environment, Kilcatherine, Eyeries, Co. Cork
Public Authority: Office of the Attorney General (AGO)
Whether the AGO was justified in refusing a request for access to all records held in relation to two cases brought against Ireland by the European Commission [Case C-392/96 and Case C-294/03]
In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the AGO and found that it was justified in refusing the request under Article 9(2)(a) of the Regulations. She affirmed the decision of the AGO accordingly.
The appellant made a request to the AGO, dated 21 July 2009, seeking access under the Access to Information on the Environment (AIE) Regulations to all records held, including but not limited to Letters of Formal Notice, Reasoned Opinions, advice sought or received [including all legal advice], minutes of meetings, and all internal and external communications by email or otherwise, in relation to two cases brought against Ireland by the European Commission [Case C-392/96 and Case C-294/03]. The AGO took no action on the request within the one-month deadline specified in Article 7 of the Regulations. On internal review, however, the AGO refused the request in reference to Article 6(1)(d) of the Regulations, stating that the request was not specifically directed to environmental information and therefore fell outside the scope of the Regulations.
An appeal against the AGO's decision was made to my Office on 10 September 2009. Following acceptance of the appeal, a review of the AGO's decision was initiated by Ms. Brenda Lynch, Investigator. On 13 November 2009, Ms. Lynch met with Mr. Christopher O'Toole, Advisory Counsel, at the premises of the AGO and was shown the files identified as relevant to the request. One week later, the AGO forwarded a sample of the relevant records to my Office for the purposes of the review. Regrettably, a long delay then arose in making further progress with the appeal due to staff shortages and personnel changes in this Office.
The case was ultimately reassigned to Ms. Melanie Campbell, Investigator. On 22 March 2012, Ms. Campbell wrote to the appellant explaining her preliminary view on the matter. The appellant was given a period of three weeks in which to reply, but no reply to Ms. Campbell's preliminary view letter has been made by the appellant to date. However, I have had regard to the arguments made by the appellant in support of his appeal. I have also had regard to the submissions made by the AGO dated 7 October 2009 and 20 November 2009, respectively, and to Ms. Lynch's written report of her meeting with Mr. O'Toole dated 13 November 2009. In addition, I have examined the sample of records provided. I have decided to bring this appeal to conclusion by way of a formal, binding decision.
In December 2011, the Regulations were amended by the European Communities (Access to Information on the Environment) (Amendment) Regulations 2011 (S.I. No. 662 of 2011). Under Article 12(6) of the Regulations, as amended, I may now waive all or part of the appeal fee where the original decision was untimely, i.e. where there was a deemed refusal of the original request.
In this case, the AGO apologised in its internal review decision for its failure to make any response to the appellant's original request. It admitted that the request was received in the Office but that no file was opened. As noted above, staff shortages and personnel changes in this Office then resulted in a long delay in making progress with the appeal. In the circumstances, I consider that a full refund of the appeal fee is warranted.
My review in this case is concerned solely with the question of whether the AGO was justified in refusing the appellant's request for access to all records held, including but not limited to Letters of Formal Notice, Reasoned Opinions, advice sought or received [including all legal advice], minutes of meetings, and all internal and external communications by email or otherwise, in relation to two cases brought against Ireland by the European Commission [Case C-392/96 and Case C-294/03].
The AIE Regulations are based on Directive 2003/4/EC. In line with Article 2(1) of the Directive, Article 3(1) of the AIE Regulations defines "environmental information" as
"any information in written, visual, aural, electronic or any other material form on-
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites . . . and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost benefit and other economic analyses and assumptions used other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c)".
Case C-392/96 and Case C-294/03 are two related actions concerning, in essence, the adequacy of required legislative measures designed to protect certain environmental elements referred to in paragraph (a). In light of the subject matter of the appellant's request, and based on my examination of the sample of available records, I consider it likely that most of the records relevant to the request contain environmental information within the meaning of paragraph (c) of the definition above.
However, the AGO effectively refused the request on the ground that it was formulated in too general a manner. Moreover, in its submission to this Office dated 7 October 2009, the AG's Office stated that the relevant litigation files held in its Office involve "a considerable volume of paper". According to the AGO, the appellant was "invited" to reformulate his request in the circumstances.
Article 9(2) of the Regulations allows a public authority to refuse to make environmental information available where the request (a) is manifestly unreasonable having regard to the volume or range of information sought, or (b) remains formulated in too general a manner, taking into account Article 7(8). Under Article 7(8), a public authority is required, as soon as possible and at least within one month of receipt of the request, to invite the applicant to make a more specific request and to offer assistance to the applicant in the preparation of such a request. In this case, however, no action whatsoever was taken on the request within one month of its receipt.
In any event, I consider that Article 9(2)(a) is the more relevant ground for refusal in this case. As noted by Ms. Campbell in her preliminary view letter to the appellant, the request relates to a broad range of information and involves a large volume of records. The cases referred to in the request relate to infringement proceedings brought against Ireland by the European Commission. The proceedings span a period of over a decade and it is therefore to be expected that the relevant files held by the AGO would include a voluminous amount of correspondence, legal advice, and legislative material. Moreover, the request does not seek access to particular items of environmental information relevant to the legislative measures underlying Cases C-392/96 and C-294/03, but rather is directed at all records relating to the proceedings. On the face of it, therefore, the request would seem to be more about how the AGO dealt with the infringement proceedings on behalf of the State than it is about access to environmental information per se. In the circumstances, I find that the request is manifestly unreasonable by its very nature.
In addition, Ms. Campbell informed the appellant that, according to Ms. Lynch's report of her meeting with the AGO, there are two archive boxes and five additional files of records that are relevant to the request. The appellant was also informed that the AGO's submission dated 20 November 2009 confirms the large number of files involved and notes that it includes material dating from at least 1993. Although it is acknowledged that there are some duplicates in the material as well as extracts from public documents and legislation, given the broad nature of the request, such material cannot be excluded from the scope. In the circumstances, I accept that processing the request would impose an unreasonable burden on staff resources. I am therefore satisfied that the AGO's decision to refuse the request was justified under Article 9(2)(a) of the Regulations.
In accordance with Article 12(5) of the AIE Regulations, I have reviewed the decision of the AGO in this case. I find that the AGO's decision to refuse the appellant's request was justified under Article 9(2)(a) of the Regulations. I affirm the AGO's decision accordingly. I note, however, that my decision in this matter is without prejudice to the appellant's right to make a new, more specific request for particular items of environmental information relating to Cases C-392/96 and C-294/03.
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.
Emily O'Reilly
Commissioner for Environmental Information
3 May 2012