Decision
Ms F and An Coimisiún Pleanála
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141633-Q2M4G5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141633-Q2M4G5
Published on
Whether ACP was justified in refusing access to the information requested by the appellant, pursuant to article 9 (1) (a) and 9 (1) (b) of the AIE Regulations and Section 30 (1) (a) and 30 (1) (b) of the Freedom of Information Act 2014.
1. Following media reports in April 2022 which raised potential conflicts of interest questions into the operation of two-person Boards and procedures in relation to the allocation of case files and amendments to inspectors’ reports, An Bord Pleanála’s, (now An Coimisiún Pleanála (ACP) then Chairperson instructed three members of the Board’s Senior Management Team to undertake an internal review, examining approximately 300 case file.
2. In January 2023, the Interim Chairperson of ACP instructed an independent investigator, Lorna Lynch SC to carry out a “scoping investigation” into six governance areas, for the purposes of determining whether there were sufficient grounds to either refer a matter concerning a Board member to the relevant Minister for stated behaviour within the meaning of section 10 of the Planning and Development Act 2000, as amended, or to initiate disciplinary procedures concerning an employee of the Board.
3. The terms of reference of the investigation, which are available on ACPs website, state that the Chairperson, upon review of the report, was entitled to refer any matter to any other statutory authority. Ms Lynch’s investigation considered the actions of Board members and Board employees who were in office or employed during the relevant period. The report was entitled “Examination of Certain Matters”, and I will refer to it in this decision simply as “the report”.
4. When the report was concluded and reviewed by the Chairperson, ACP published a summary of the outcomes of the investigation on its website. ACP have not publicly published the concluded report. The report was, however, subsequently published by “the Ditch” on its website on 01 February 2023.
5. The original and internal review requests were made to An Bord Pleanála. During the course of this Investigation, An Coimisiún Pleanála was established, replacing An Bord Pleanála on 18 June 2025. In this regard, I am satisfied that the appropriate title of the public authority for the purposes of this decision is An Coimisiún Pleanála (ACP). Any references to An Coimisiún Pleanála which predates 18 June 2025, refer to and include its predecessor, An Bord Pleanála. It is noted that Part 17, section 495 (3) of the Planning and Development Act 2024 provides that references in any enactment, legal proceedings or document to An Bord Pleanála shall, on and after the commencement of the section, be construed as references to An Coimisiún Pleanála.
6. On 04 July 2023, the appellant made the following request to ACP pursuant to the AIE Regulations:
All documentation re methodology and quantitative/ qualitative data sets used in the formulation of An Bord Pleanala report- Examination of Certain Matters (Oct 22) pertaining to telecommunications mast appeals.
I would prefer to receive this information electronically, preferably in its original formatting.
7. ACP issued its original decision on 03 August 2023. The ACP identified two records relevant to the request, namely the terms of reference for the report and the report itself. The original decision provided the appellant with access to the terms of reference, but refused to provide access to the report itself, relying on article 8(a)(iv) of the AIE Regulations.
8. The appellant sought an internal review of the matter on 07 August 2023.
9. ACP issued its internal review decision on 15 August 2023 and affirmed the original decision stating that a scoping investigation in relation to the matters raised in the report remained ongoing and a report on the results of the investigation has not been received and it reiterated the position set out in the original decision and that releasing the information may limit the Bord’s ability to formulate potential further action while providing for the equitable treatment of individuals.
10. The appellant appealed the matter to this Office on 18 August 2023.
11. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and ACP. I have also examined the contents of the record at issue. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
12. What follows does not comment or make findings on each and every argument advanced, however all relevant points have been considered.
13. 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.
14. I have considered the submissions of the parties to this appeal and the wording of the AIE request in question. I note that the sole record which has been identified by ACP as relevant to the request is the concluded report that was submitted by Lorna Lynch SC to ACP. Given that the appellant has sought access to documentation “re methodology and quantitative/ qualitative data sets used in the formulation of An Bord Pleanala report - Examination of Certain Matters (Oct 22) pertaining to telecommunications mast appeals” [emphasis added], I simply cannot see how the report itself comes within the scope of this request. Firstly, I note that the request was made on 04 July 2023, some five months after the report was published online. Secondly, the request seeks information “used in the formulation of the report”, from which I consider that it can reasonably be assumed that the appellant has in fact already read the report itself.
15. I have also considered the contents of the report. The report makes reference to the methodology and approach used, but I do not consider this to constitute documentation relating to the methodology. There is no reference in the report to any data sets used.
16. Given the above, I am satisfied that the report is outside the scope of the request, and that the scope of this review is whether ACP have carried out reasonable searches to identify the information relevant to this request.
17. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request.
18. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
19. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied.
20. As I have set out above, I find that there has been a misunderstanding in this case in relation to the scope of the request. ACP have identified the final report as the only relevant information arising under this request, however it has not addressed what information fed into/informed the report, as requested by the appellant. The appellant clearly seeks information regarding the methodology, qualitative and quantitative data sets that informed the Report and not the final report alone. No information regarding (but not limited to), for example, any data collected or relied upon by the author were identified.
21. I note there is reference in the report to how telecommunications mast cases have been treated by the Board in the past, and this appears to refer to data considered by the author in the formulation of the report.
22. The appellant, in submissions which were provided to ACP on 07 May 2025 stated “I cannot presume to know what information is contained in these data sets. It may only reference what is in the published report. It may contain other details which document further failure in the decision-making process, which were not included in the internal report…”
23. In ACP’s internal review decision, it stated that “this information you request forms part of the Internal review report on procedures and practices in An Bord Pleanála carried out by Senior Management personnel… the scoping investigation is ongoing and to date a report on the results of the investigation has not been received.” I consider the use of the words “forms part to” to indicate there is further information.
24. It is also further noted that in submissions to this Office dated 27 May 2025, ACP stated “the terms of reference for Ms Lynch’s scoping investigation can be found on the Board’s website. Ms Lynch was given access to a wide range of information. This included soft copies of documentation gathered by the Internal Review team and hard copies of the Case file that ranged between 2017 and 2022, and the relevant Board resolutions, policies and correspondence. Ms Lynch carried out interviews with seventeen relevant people including both past and current Board members and employees…” “Ms. Lynch determined the methodology for the scoping investigation. In this regard she carried out a preliminary analysis of the cases identified by the Internal Review Team. Having reviewed the methodology of the Internal Review Team and having engaged with them, Ms. Lynch then set parameters for the relevant case files to consider as part of this scoping investigation.” I consider it likely that some of all of the “wide range of information” that Ms. Lynch was provided with access to may come within the scope of this request, insofar as it relates to telecommunication mast appeals.
25. Whilst it may be the case that no further relevant information exists, without providing details of searches carried out pursuant to article 7 (5) of the AIE Regulations, this Office cannot determine if ACP took all reasonable steps pursuant to article 7 (5) to ensure all information relevant to the request has been identified and as such, cannot progress to consider the arguments put forward by ACP to justify refusal to provide the information identified as relevant to the request.
26. In light of the above, it is evident that ACP has not carried out detailed searches pursuant to article 7 (5) of the AIE Regulations, in processing the appellant’s request. I am not satisfied that the searches (if any) carried out by ACP are reasonable within the meaning of the AIE Regulations.
27. Accordingly, it is my view that the most appropriate course of action to take is to annul ACP’s decision and direct it to undertake a fresh internal review decision. I appreciate this causes further delay for the appellant in what has already been a lengthy process, however, given the circumstances it would appear that ACP will need to carry out a full new search process, taking into account the findings I have made in respect of the scope of the request above. For the sake of clarity, ACP are not required to consider the report as part of this new internal review process. ACP should consult with the appellant if it has any further queries regarding the scope of the request.
28. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul ACP’s decision. I direct ACP to carry out a new Internal review decision in respect of this request.
29. 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