Decision
Mr X and Kerry County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152588-H5D6M3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152588-H5D6M3
Published on
Whether the information requested is held by the Council in accordance with article 7(1) of the AIE Regulations and whether the Council conducted reasonable and adequate searches such as to identify the information requested, in accordance with the implicit requirement of article 7(5), prior to refusing the request on the basis that it had released all relevant information.
29 November 2024
1. The appeal in this case relates to a request for information that was originally submitted to the Council on 8 July 2024, textually as follows:
“I am seeking the following:
“all internal and external communiction [sic] including the word ‘JAIL’ and, or ‘PRISON’ in respect of each of the following four Kerry County Council Planning applications referred:
14659
181151
19331
2091
“I would prefer to receive this information electronically, preferably in its original formatting. Attached is a leter [sic] of authority from [the requester]”.
2. By way of explanation, the request was submitted by a representative of the person seeking the information, who had given his authority to the representative for such purpose. Any reference in this decision to correspondence or submissions to or from the “the appellant” is to be understood interchangeably as having been made by the appellant himself or by his representative.
3. On 10 July 2024, the Council’s AIE Officer communicated by email with the appellant to inform him that“[a]ll records on a planning application file are available for viewing on Kerry County Councils [sic] planning portal.” A link to the portal was provided in the email and the appellant was informed also that the hardcopy planning file was available for viewing at the Council offices at Rathass, Tralee. A number of emails were exchanged between the parties following this communication from the Council, all concerning records containing the words sought by the appellant in internal communications. The appellant maintained that there were“no references to Jail and Or Prison in the online documentation.” The thread ended with an email from the Council stating that all internal communications were on the planning application files and were online.
4. Further email correspondence ensued between the two parties later on the same day, which included stress being made by the appellant on the element of his request that referred to internal communications that might contain the words ‘jail’ and ‘prison’. The AIE Officer reiterated the point made in her earlier email that internal communications are included on the online planning application file.
5. No first instance decision issued to the appellant in this case. This was acknowledged by a senior executive officer at the Council who issued an internal review decision by email dated 27 September 2024, apologising for the delay in responding to the request and admitting that“a formal decision in relation to your request was never issued.” In later correspondence with this Office, the AIE Officer confirmed that“I did not make a formal original decision in relation to this AIE request.”
6. According to email correspondence from the Council to this Office of 2 October 2024, the appellant submitted an internal review request with the Council on 21 August 2024 but, due to staff being on leave, this was missed.
7. Having not received an internal review response by the due date of 21 September 2024, the appellant submitted an appeal to this Office on 27 September 2024, citing this lack of a response as the reason for the appeal.
8. On the same date, 27 September 2024, the Council issued an internal review decision to the appellant. However, in subsequent correspondence of 2 October 2024, the Council’s AIE Officer informed this Office that the decision had, in fact, issued“yesterday evening”, that is, on 1 October 2024. It is not clear whether the issuing of the decision was prompted by notification to the Council of receipt of the appeal by this Office. In the decision, the decision-maker refused the request, stating that all records in relation to planning applications,“including internal and external correspondence are available on the online planning file.” He reiterated the point that all records were also contained in the hardcopy file, available for viewing by “calling to the planning department in county buildings”.
9. The internal review continued by referring to article 4(1) of the AIE Regulations, saying that these“do not apply to environmental information that is required to be made available under any other statutory provision, for inspection or otherwise, to the public.” No reference was made in the letter to the “other statutory provision” which, it inferred, precluded the Council from having to provide the appellant with the environmental information he had requested.
10. Following confirmation from the Council that it had issued an internal review decision, this Office deemed the matter settled and proceeded to close the appeal, notifying each party of this fact on 2 October 2024, but leaving open the possibility of a reopening of the case should the appellant not be satisfied with the Council’s response.
11. On 7 October 2024, the appellant wrote in to this Office to appeal the Council’s decision, whereupon a new appeal reference number was attached to the appeal, the number appearing at the top of page 1 of this decision superseding the previous reference number.
12. Following a request to the parties from this Office, each provided written submissions in the first week of November 2024.
13. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal, which I have now completed under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and the Department. I have also reviewed the contents of the related planning files which are available on the Council website. 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’);
14. What follows does not make findings on each and every argument advanced but all relevant points have been considered.
15. This appeal is concerned with whether the information to which the appellant was directed by the Council on its online planning portal and its hardcopy equivalent available for viewing at its Tralee offices can be considered to be the provision of all the information that the Council holds that is relevant to his request in compliance with article 7(1) of the AIE Regulations and whether the Council has carried out adequate searches such as to identify and locate all the information requested, in accordance with the implicit requirement of article 7(5) of the AIE Regulations so to do, prior to referring the appellant exclusively to the information that is already in the public domain.
16. I have alluded above at paragraph 9 to the reference made by the Council in its internal review decision to article 4(1) of the AIE Regulations, which excludes the application of the regulations to any environmental information that is“required to be made available under any other statutory provision…to the public.” It would appear that this is a reference to section 38 of the Planning and Development Act 2000 (as amended) (the PDA). This provision requires that planning authorities, such as the Council, publish certain material regarding planning applications on their websites and provide this information in hard copy format for inspection and purchase by the general public. The information to which the appellant was directed is available online due to this provision. This was an incorrect interpretation of article 4 of the AIE Regulations. This is because section 38 of the Planning Act is explicitly excluded at article 4(2)(a) of the AIE Regulations from the application of article 4(1). Article 4(2)(a) provides that,“Notwithstanding (a) section 38 of the Planning and Development Act 2000 (No. 30 of 2000) and any regulations made thereunder, … environmental information held by, or on behalf of, a public authority shall be made available in accordance with these Regulations.” The effect of article 4(2)(a) is that even if a public authority is required to make information available under section 38 of the PDA, a public authority must also make it available under an AIE request, when relevant.
17. I also wish to note that the internal review decision in this case, dated 27 September 2024 but, according to the AIE Officer in correspondence with this Office, sent to the appellant on 1 October 2024, was outside the prescribed time of one month from the date of receipt of the internal review request. This is stipulated at article 11(3) of the AIE Regulations. The explanation given by the Council for the delay, both in its internal review decision and in correspondence with this Office, was that it was due to “leave”, that is, due to a key staff member or members having been on annual leave in the days prior to the due date for issuing the decision. Public authorities are reminded that the AIE Regulations are a key piece of secondary legislation, namely Statutory Instrument 133 of 2007, which emanates from the European AIE Directive, 2003/4/EC on public access to environmental information. It is, accordingly, necessary for public authorities to have in place all resources necessary in order to comply with their obligations under the Regulations and, ultimately, the Directive.
18. In the course of the review of this appeal, the appellant made submissions to this Office. The content of those submissions relates a brief history of his attempts to secure planning permission from the Council to build a dwelling house and to nine years of “refusals” of those attempts. They relate that, following his purchase of a truck and his building of a 68 metre “passive house” on top of it, which he drove on to his land on 16 May 2015, there began “threats of jail, fine, etc.” It is my understanding that these alleged threats form the basis of the request for information, relating as this does to records containing the terms ‘jail’ and ‘prison’. The submissions contain expressions of frustration relating to the appellant’s dealings with the Council and a transcription of an article published by the Irish Examiner newspaper on 23 August 2022 relating to the appellant’s attempts during 15 years to secure planning permission to build a house. The article quotes the appellant as alleging that, in relation to the Council’s demands that he remove the truck/house from his land (referred to as a “moving house” in a RTÉ documentary about his “struggle” to build a dwelling, “The Man with the Moving House” which aired on 25 August 2022), he was told that“if you don’t remove this unauthorised development on your land, you’re liable to spend two years in jail or a fine of €12.7 million along with it – or both.” The submissions also contain information that is not relevant to the requirements of the review of the Council’s decision-making and of the appeal itself, for which reason this decision will focus exclusively on the Council’s response to the original request for information.
19. The appellant’s submissions infer that the Council has withheld information by stating that if“Kerry County Council are permitted to withhold information on how deliberation takes place when determining planning applications such as [those made by the appellant], then there is a concern that other people who apply to build a house could be made to suffer as [the appellant] did. There is a public interest served by the disclosure of this information. This information will improve access to justice in environmental matters.” This inference indicates that the appellant is not satisfied with having been directed to the Council’s online planning portal and the hardcopy planning file available for viewing at the Council offices and suggests that he is of the view that further information exists relevant to his appeal which has not been provided to him.
20. The position of the Council is that all information relevant to the request has been provided to the appellant via the link to its online planning portal that was provided to him on 10 July 2024, in response to his request:“All records on a planning application file are available for viewing on Kerry County Councils [sic] planning portal.” The same point was made in subsequent correspondence with the appellant on the same date, with the AIE Officer confirming to him that _“all planning application records including internal and external communication in relation to a planning file are available for viewing”on the Council’s website and in hard copy format “at the public counter in the Council offices”._
21. The internal review decision of 27 September 2024 affirmed the content of that correspondence of 10 July 2024.
22. In submissions to this Office, the Council expressed its understanding that the only way to find records containing the terms ‘jail’ and ‘prison’, the subject of the request, is“to search each record manually on each planning file either online or hardcopy to identify if the words…are contained in the records. As the records and files are in the public domain [the appellant] could check the planning files for the specific words himself. Alternatively, the request would have required the planning department staff to search each record on each of these files for the relevant words and extract those documents.” The Council is of the view that this would not“be reasonable given the records are available to the requester to search” , and noted that“there is a public interest in ensuring the best and most optimum use of Council resources in planning departments.” The Council’s AIE Officer stated in those submissions that she had received confirmation, following engagement with the Council’s planning department, that all internal and external communications in relation to planning applications are kept on the planning file.
23. In the same submissions, the Council asserted its commitment to providing public access to planning information by complying with its obligations in respect thereof contained at section 38 of the Planning Act.
24. The Council went on to make reference to two further grounds that it relied on to justify its not having searched through all the planning documents, including internal and external correspondence, for the two terms ‘jail’ and ‘prison’ that formed the subject of the request for information. The first was article 9(2)(a) of the AIE Regulations which provides that a public authority“may refuse to make environmental information available where the request— (a) is manifestly unreasonable having regard to the volume or range of information sought” ; the second was article 15(1)(d) of the Freedom of Information Act 2014 (FOI Act), which provides that a freedom of information request may be refused where the information requested“is already in the public domain”.
25. It reiterated the point made in the internal review decision that section 4(1) of the AIE Regulations excludes, from the operation of the Regulations, environmental information that is subject to be made available to the public under any statutory provision other than the Regulations. I have already referred to this point at paragraphs 9 and 16 above, for which reason no further comment on it on my part is necessary.
26. I acknowledge that the Council in this case has indicated to the appellant the way in which he can access all documents contained on the planning files associated with the four planning applications that he references in his appeal, providing a link to access these documents on its online planning portal. This was in correspondence prior to a formal decision issuing. The Council then went on to refuse the request by reference to article 4(1), which I have dealt with above. However, it would have been open to the Council to grant the appellant access to this information in a formal decision by way of providing him with the relevant link. While the appellant’s request stated that he wished to receive the information sought in electronic format, it would have been open to the Council to provide this information via its website by relying on article 7(3)(a)(i) which states that a public authority may provide a requestor with information in a form or manner other than that requested where“the information is already available to the public in another form or manner that is easily accessible” . This is the appropriate provision for a public authority to consider when it wishes to grant a request by directing the requestor to information that is already available to the public in a form or manner that is easily accessible. I acknowledge that the Council did engage with the appellant and provide him with the link, which is welcome, but the Council should take note of how this should have been approached through the formal AIE process.
27. In correspondence sent to the Council’s AIE Officer on 10 July 2004 and to which reference is made above at paragraph 3, the appellant maintains that there were“no references to Jail and Or Prison in the online documentation.” This indicates that he had reviewed the planning files but without finding the terms he was seeking. The appellant maintains that further information that is relevant to his request may be held by the Council.
28. I am therefore satisfied that the information available on the Council’s online planning portal is not relevant to this request, and that the question that arises is therefore whether further information, namely information that is not required to be made public under section 38 of the PDA, and relevant to the request for information, may be held by the Council. Section 38 of the PDA states:
38.—Where a planning authority gives its decision in respect of a planning application the following documents shall be made available by the authority within 3 working days by placing the documents on its website, and may also make available such documents both in electronic form and for inspection and purchase by members of the public during office hours:
(a) a copy of the planning application and of any particulars, evidence, environmental impact assessment report, other written study or further information received or obtained by the authority from the applicant in accordance with regulations under this Act;
(b) a copy of any submissions or observations in relation to the planning application which have been received by the authority;
(c) a copy of any report prepared by or for the authority in relation to the planning application;
(d) a copy of the decision of the authority in respect of the planning application and a copy of the notification of the decision given to the applicant; and
(e) a copy of any documents relating to a contribution or other matter referred to in section 34 (5).
29. I note in this regard that the Council has given no indication, either to the appellant or to this Office, that it has conducted any searches for the requested information. It has merely inferred that all information that is relevant to the request is contained in the planning files. I am of the view that there may be information relevant to this request that is not within the categories that are set out in section 38 of the PDA above and therefore contained within the online portal planning files
30. I consider that additional information relevant to this request may include information held on the email accounts of Council personnel, internal briefing notes or case notes created by Council staff, messages sent and received between Council staff members on Council-issued telephones and content in social media accounts created and monitored for work purposes by the Council. There may also be information relating to the appeals to An Bord Pleanála. It does not appear to me that this type of information is required to be made publicly available under the Planning Act. It may also be the case that information relevant to the request is held in paper and electronic files and in databases held by the Council, none of which may be required to be made available to the public under section 38 of the Planning Act. Given the long history relating to the relevant planning applications, I consider it reasonable for the appellant to believe that such information may exist. Accordingly, I necessarily turn to the matter of adequate searches having been carried out by the public authority.
31. I consider that the Council is refusing the request in this case as it is of the view that it has provided all relevant information by providing access to the planning files on the online planning portal. It is thus implicitly doing so under article 7(5) of the AIE Regulations, which allows a public authority to refuse a request if the information requested is not held by or for it. In this case, it has indicated that it holds no information in addition to that contained within the planning files. A prerequisite in order to be able to refuse information under this article is the provision of evidence that adequate searches for information have been conducted by it.
32. Article 7(5) provides that“where 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.” In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant, namely the steps that the public authority took to search for relevant information before it concluded that no further relevant information is held by or for it. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
33. As indicated above, there is no evidence in correspondence between the Council, the appellant and this Office that it has carried out any searches for information. Given this circumstance, I am of the view that the appropriate course of action at this juncture is that I annul the Council’s decision and direct it to carry out a new internal review process, to include reasonable and adequate search for information relevant to the request. Should the Council conclude that it does not in fact hold further information relevant to this request, it should provide the appellant with details of the steps it took to search for information. The Council may wish to refer to previous decisions of this Office for guidance on the level of detail on such searches that should be provided. I would also remind the Council of its obligation to interpret the appellant’s request in a broad manner. In my view this would include all communication related to or relevant to the planning applications referred to in the request, and may include information that post-dates the decisions in these planning applications, relates to any appeals to An Bord Pleanála or relates more broadly to the appellant’s interactions with the planning department of the Council.
34. I also wish to note that the submissions of the Council referred to article 9(2)(a) of the AIE Regulations and article 15(1)(d) of the FOI Act. This was in reference to any requirement on the Council to search through the information available online on the Council planning portal for any references to “jail” or “prison”. As I have decided that a search of that nature is not required, I consider that I am not required to make any findings in relation to article 9(2)(a), as the appropriate course of action is to direct the public authority to conduct a search for relevant information that is not already available to the public via the online planning portal.
35. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the Council’s decision to refuse the information requested on the basis that it is not held by it, in accordance with article 7(5) of the AIE Regulations. The Council should now carry out a new internal review process, to include reasonable and adequate search for any additional information relevant to the appellant’s request that is not already available on the online planning portal.
36. 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