Decision
Ms X and Sligo County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-150154-J7B4Y7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-150154-J7B4Y7
Published on
Whether the Council was justified in refusing access to environmental information relating to drainage work coming within the scope of the appellant’s request on the basis that no further relevant environmental information is held by or for it
18 October 2024
1. On 22 March 2024, the appellant submitted a request to the Council seeking access to:
“Covering the last 80 years or as far back as records allow:
1. All documents and maps of drainage work carried out by or on behalf of Sligo County Council in the townland of Tunnagh
2. All documents and maps of drainage work carried out by or on behalf of Sligo County Council on the River Owenmore or its tributaries where they form the bounder Tunnagh
Information should include all internal, external and third party communications; electronic, paper, formal or informal.”
2. On 22 April 2024, the Council issued its decision on the appellant’s request, stating:
“Sligo County Council's Bridges section replaced a bridge/culvert with a new Armco structure on R293 upstream of Tunnagh (Kilshalvy Td. ) in 2004 approx.
General maintenance was carried out on the Owenmore river adjacent to Tunnagh and along the full river and on some of its tributaries over the years but we have not detailed records of the actual work carried nor the dates the works were carried out at this stage.”
3. On 14 May 2024, the appellant sought an internal review of the Council’s decision, contending that some records of work carried out by either the Council or on its behalf should exist.
4. On 17 June 2024, the Council issued its internal review decision. In doing so it stated that it was affirming its original decision to refuse access to the information sought on the basis that no such records exist.
5. On 28 June 2024, the appellant submitted an appeal to this Office.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Council and the appellant as outlined above and to correspondence between my Office and both the Council 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)
7. 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, 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.
9. This review concerns whether the Council was justified in refusing access to environmental information relating to drainage works coming within the scope of the appellant’s request on the basis that no further relevant environmental information is held by or for it.
10. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations. 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. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
11. It is the appellant’s position that environmental information relevant to her request should exist. In its internal review decision, the Council stated that it was unable to locate relevant information having carried out the following steps:
• “a physical search of all relevant areas of the organisation in which the records sought might be held
• a search of the electronic databases and records held on mainframe computers
• interviews with individual members of staff who may have dealt with such records
• circulation of an e-mail to relevant staff, which gave the definition of the records sought and stressed the need for all staff to carefully consider if they were aware of, or could not find, any such records.”
12. During the course of this review, this Office sought submissions from the Council in relation to the searches and steps undertaken to locate relevant environmental information. Provided below is a summary of the submissions received from the Council.
(a) The Council stated that all historic records prior to electronic storage are stored at Council headquarters in the Old Gaol/Jail building. It stated that files were not archived properly and there is a very substantial number documents and files. It stated that the historic information is in the process of being archived and is not currently stored in a manner that can be searched. It explained that it had employed an archivist who was in the process of going through the files and building up an electronic archive. It stated that when the work is complete, it should be in a better position to electronically access its historic records. It stated that it currently does not have the required resources to carry out an exhaustive search.
(b) The Council, in providing further detail regarding the amount of historic information concerned, the manner in which it is currently being stored, and whether the electronic archive being developed can currently be searched, stated:
“…[a]ll historic records - dating back to the middle of the last century - for various sections of the council going back for most of the period of the AIE request - are stored at Council headquarters in part of the Old Jail building. This building dates to the early 19th Century and houses the original old Jail cells. The files were stored in these cells from the middle of the 20th Century, which while protected from the weather have no heating and are prone to being damp with access by various wildlife a common occurrence. The files were stored in either filing cabinets, folders or cardboard filing boxes and were not archived properly over the years, and as you can imagine there is a very substantial amount of documents and files stored in this premises. Quite a lot of these early files are in very poor condition and need eradiation before being handled. We have the 3rd largest store of documents in the country after Dublin and Cork. Currently the work on archiving has stopped as the Archivist has moved on – a new one is due to be appointed in approximately 6 months. A large amount of work is still required before we have a proper electronic archive.”
(c) The Council stated “to deal with the AIE request in question – we were relying on existing staff and any recent electronic or paper records available.”
(d) The Council stated that it is probable that information has been lost/misplaced or damaged over the years, however it would not have been deliberately destroyed.
(e) The Council indicated that the Environment Section, the Planning Section, the Roads Section, and the Area Office were contacted. The Council outlined that it was determined that that works of this nature would historically have been carried out by the Roads Section.
(f) The Investigator, having regard to the detail in the internal review decision relating to physical searches, asked the Council to clarify the areas of the Council searched, provide details of the locations within the Roads Section / the particular physical files searched and the search methods used (e.g. by name, by date, by key words, by reference number, etc). In response, the Council stated that files of the type sought would be kept in hard copy and, if not historic and stored in the Old Jail building, would normally be stored in the Area Office. The Council provided copies of emails between relevant staff members when processing the request, detailing “some of the correspondence between staff in various offices – Planning, Roads, and Environment in an effort to locate any information.” The Council stated that over the years a lot of minor maintenance work would have been carried out by the Area Office and there would have been no requirement to tender and any records would be minimal.
(g) The Investigator, having regard to the detail in the internal review decision relating to electronic searches, asked the Council to provide details of the electronic databases and electronic records searched and the search methods used (e.g. by name, by date, by key words, by reference number, etc.). In response the Council stated “[e]ach of the offices contacted would have their own local data bases – how they searched these files would be down to the individuals in the office. As pointed out – no records of minor works would have been kept and certainly older records would not have been archived onto a hard drive.”
(h) The Council indicated that in an effort to identify any recent electronic or paper records available, the request was sent to the Roads Section and interviews were carried out with existing Area Office staff and a number of staff who had previously worked in the Roads Section and the Area Office, prior to being transferred internally. The Council stated that these steps were undertaken to see if those individuals had any records (electronic or hard copy) or recollection of any works of this nature carried out by the Council. The Investigator, having regard to that information and the information provided in the internal review decision relating to interviews carried out with and the email sent to relevant staff, asked the Council to provide further detail regarding the individuals consulted (e.g. their name position/previous position), the responses received from those individuals, and the nature of any searches carried out. In response, the Council referred to the copies of the emails between relevant staff members when processing the request provided (see point (f) above). It noted that responses were received by email or by telephone.
(i) The Council referred to one of the emails provided (see point (f) above), which indicated that the Senior Executive Engineer stated that he had a folder on his Outlook Email dealing with correspondence related to the Owenmore River for recent years and there were also hard copy files kept in another named staff member’s office related to the Owenmore River, however the Council stated that none of the information was relevant to the appellant’s request as it did not relate to works carried out at or adjacent to the townland of Tunnagh.
(j) In response to the appellant’s contention that “[r]ecords like tenders, financial agreements, timesheets and written decisions” should exist, the Council stated that any recent works to the river would be carried out by the Office of Public Works (OPW). It stated that any historic works, including tender documents, would in all probability have been stored in the Old Jail building, and referred to its archiving efforts, detailed above.
13. Following receipt of the Council’s submissions, the Investigator reverted with some additional queries, which are detailed below along with the Council’s responses.
(a) The Investigator asked for confirmation as to how the Senior Engineer’s folder in Outlook was searched (e.g. the search terms used) and how the hard copy files kept in the other named staff member’s office were searched. She also asked whether or not any other staff member emails were searched. In response, the Council stated that [k]ey search words would have been used - based on the specific request. The area office is small and has limited storage and generally would only keep more recent hard copy files with older files being moved to the Jail. Any file in the area office would have been physically searched. [It is] not aware of other staff emails being searched – only relevant staff in each of the offices were contacted.”
(b) The Investigator noted that some of the emails between relevant staff members when processing the request provided to this Office referred to a “Master File” for the Owenmore River. She asked whether this “Master File” was located and, if so, how it was searched (e.g. the search terms used). In response the Council stated the Master File had not been located.
(c) The Investigator asked the Council to again clarify the electronic databases/electronic files searched and the search methods used. In response the Council stated “The area office would have its own local data base and files would have been searched using key search words for this specific request. There would have been no inputting of older records to the data base.”
(d) The Investigator asked the Council to confirm if any locations (physical/electronic) within the Area Office were searched (and if the office of the named staff member was in the Area Office) and if so, how they were searched. She further asked where the information that was provided to the appellant at internal review (also contained in the emails between relevant staff members when processing the request provided to this Office) was identified. In response the Council stated “[b]oth a physical and online search was carried out in the relevant area office anything of relevance was provided to the applicant. As stated recent works to the river – if any- would be carried out by the OPW and the council would have no records. Any historic council works would generally have been carried out by staff in the area office with little or no record keeping due to the scale of the works. If larger works were carried out these files would have been stored in the Jail.”
14. Having regard to the information provided, I accept that it is unreasonable for the Council to carry out searches of older records held in the Old Jail building that are in the process of being archived, that the Council provided this Office with certain details relating to its record management practices and searches undertaken to identify and locate relevant information, and that it may be that further information sought by the appellant is not held by or for the Council. However, the Council has not provided sufficient details in its decisions or its submissions to this Office relating to the searches carried out, including those referred to in its internal review decision.
15. Indeed, while the Council indicated that various physical and electronic, including email, searches were undertaken across different sections of the Council, notwithstanding repeated requests from this Office, it at no stage provided the details of the specific search terms used, the specific physical files searched, or the specific electronic databases and main frame computers searched. The Council also did not identify where the information provided at internal review was located, clarify whether any individuals, including those consulted, other than the Senior Engineer carried out searches of their emails, or what specific searches any of the individuals or particular sections consulted carried out.
16. I also wish to note that although the Council indicated that the Environment Section, the Planning Section, the Roads Section, and the Area Office were contacted, and the copies of the emails between relevant staff members when processing the request provided to this Office indicate that those individuals were consulted, the Council did not explain in its submissions to this Office their positions or the sections in which they worked, leaving it for this Office to ascertain from the context of the emails, which is more difficult.
17. As indicated above, while I accept that it is unreasonable for the Council to carry out searches of older records held in the Old Jail building that are in the process of being archived, that certain search details have been provided, and it may be that further information sought by the appellant is not held by or for the Council, the Council has not provided sufficient details of the searches carried out. In the circumstances, I cannot be satisfied that the Council has carried out adequate steps in an effort to ascertain the whereabouts of all information coming within the scope of the appellant’s request. I find, therefore, that the Council was not justified under article 7(5) of the AIE Regulations in refusing access to further information.
18. Accordingly, I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council, the effect of which is that the Council conduct a new internal review decision-making process in respect of the appellant’s request in accordance with the AIE Regulations.
19. For the sake of completeness, notwithstanding the fact that the Council’s decision under article 7(5) of the AIE Regulations was not justified, given the Council’s comments in its internal review decision that it had been “unable to determine whether any other public authority might possess the records” and its subsequent comments in its submissions to this Office to the effect that the OPW may have carried out relevant works, I wish to draw the Council’s attention to article 7(6) of the AIE Regulations. Article 7(6) provides that where article 7(5) applies and the public authority concerned is aware that the information requested is held by another public authority, it shall as soon as possible (a) transfer the request to the other public authority and inform the applicant accordingly, or (b) inform the applicant of the public authority to whom it believes the request should be directed. Finally, I wish to note that it is open to the appellant to make a separate request to the OPW, should she wish to do so.
20. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Council’s decision under article 7(5) in this case. I direct the Council to conduct a new internal review decision-making process on the appellant’s request.
21. 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