Decision
Dr Fred Logue & The An Coimisiún Pleanála (ACP)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-158517-Y8L2N3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-158517-Y8L2N3
Published on
Whether ACP was justified in refusing access to the information sought on the basis of article 9(2)(b) of the AIE Regulations.
28 November 2025
1. On 21 January 2025 the appellant made a request for information relating to obligations on ‘competent authorities’ under the Environmental Impact Assessment Directive (EIA), stating:
“Article 5(3) of the EIA Directive provide ‘In order to ensure the completeness and quality of the environmental impact assessment report: …. (b) the competent authority shall ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report ;
The purpose of this request is to seek information about how the Board complies with this obligation in relation to
(i) Water Quality and the Water Framework Directive;
(ii) acoustics including AM noise from wind farms;
(iii) traffic modelling;
(iv) assessment of the integrity of European Sites under the Habitats Directive;
(v) ornithology under the Habitats Directive and Birds Directive; and
(vi) hydrology and hydrogeology.
I therefore wish to make an AIE request as follows:
1. Please identify the relevant members of staff and Board members which have sufficient expertise to examine EIARs in the six areas identified above;
2. In respect of the individuals at No. 1 above, please detail their level of expertise by reference to (a) higher education qualifications; (b) membership of professional bodies; and (c) length of time active in the relevant fields;
3. Please identify what expertise the Board has access to in relation to the same areas and provide details of their qualifications and membership of professional bodies; and length of time with that expertise;
4. Please identify any specialist modelling tools, databases or other technical resources which the Board uses or has access to in relation to the six areas identified above.”
2. On 20 February 2025 ACP sent notice to the appellant of its intention to invoke article 7(2)(b) of the AIE Regulations, noting that it was extending the timeframe for its response by one month “due to the nature and complexity of the information requested requiring further consultation with relevant staff” and as a result of “an elevated workload for An Bord Pleanála ”.
3. On 20 March 2025 ACP issued its original decision, refusing access to the information, and inviting the appellant to reformulate the request under article 7(8), stating:
“I have given your request detailed consideration and have consulted with relevant personnel internally. The context for your request is the Board's obligation under Article 5(3) of the EIA Directive to ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report (EIAR) .
The obligation under the EIA Directive relates to the sufficiency of expertise to examine an EIAR in an individual case and is necessarily specific to an EIAR in a particular application. What is "sufficient expertise " is therefore something to be considered on a case-by-case basis rather than an overall basis. I therefore consider that your request (parts 1-3) is in too general a manner in circumstances where the obligation under the EIA Directive relates to an EIAR in an individual case and therefore any consideration of sufficiency of expertise is required to be considered against a particular EIAR in a particular application for development consent and this cannot be addressed in a general sense in respect of relatively broad categories of expertise. The expertise required under those headings may differ from case to case. The same logic applies in respect of expertise that the Board has access to, i.e. it will depend on what expertise is required in respect of a particular EIAR.
I therefore invite you to make a more specific request pursuant to Article 7(8) of the AIE Regulations. If you would like assistance in the preparation of such a request, please do not hesitate to contact me.
In relation to part 4, the Board utilizes a range of technical resources, databases, and modelling tools to support decision-making in environmental assessments. These include the following E-Resources: • GIS (Geographic Information Systems) • National Planning Application Database • Access to the national monument service website • Geo Hive • Data.gov.ie • Heritage Maps viewer • Biodiversity maps data portal and mapping system • Database of Irish Excavation reports • OpenStreetMap • Eplans • Irelands Marine Atlas • Freshwater & Marine Publications • EPA Maps and databases • National Parks and Wildlife Maps and Data • Access to the relevant legislation and regulations • 4C Offshore Wind and Interconnector Maps • Access to relevant plans such as Local Area, city and county development plans. • Westlaw • Land registry maps • Historic Environment Viewer, managed by the Department of Housing, Heritage and Local Government. It displays data regarding the known ITM locations of records within the datasets of the National Monuments Service (NMS) and the National Inventory of Architectural Heritage (NIAH). • Myplan.ie - A web map portal providing spatial information relevant to the planning process in Ireland. This site is an initiative of the Department of Housing, Local Government and Heritage in conjunction with Irish Local Authorities. Inspectorate staff also benefit from knowledge-sharing through internal meetings and training sessions ”.
4. On 25 March 2025 the appellant requested an internal review of the decision, stating:
“1. This request is made for future use in case a client wants to argue that the Board has breached Article 5(3)(b), it is not referrable to a particular EIAR, although that being said the areas of expertise identified are common across a large range of projects. For the avoidance of doubt this provision of the EIA Directive places a positive statutory obligation on the Board to ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report. I find it hard to believe that the Board doesn’t know what resources are available to provide this expertise in advance of receiving an EIAR when its job is to ensure the expertise .
2. The request is not formulated to generally it is quite specific to the type of disciplines involved and it is surprising that the Board can’t identify how it maintains expertise in these areas given that it is supposedly an expert decision-maker and invariably relies on its expertise when it makes and defends its decisions and it has a positive statutory obligation to have or have access to the expertise. It is not credible that the Board only acts in a reactive manner when it receives an EIAR given that the Board, as far as I know, doesn’t hire employees based on individual applications for permission and also has to obey procurement rules so if it is to outsource the expertise it will already have identified providers because it would take too long to run a procurement in response to the receipt of an EIAR. The response therefore is completely inadequate and appears to be simply used as a way to avoid answering the request.
3. If there are different resources available for sub-disciplines identified then please identify all of the resources in each area.
4. The Board is currently running a procurement process for specialist consultants, if what the Board has said in response to my request is true, then how can it identify suitable consultants merely by reference to an area of expertise (https://www.pleanala.ie/en-ie/careers/careers-specialist-consultants)? This competition contradicts the response to my request.
5. The Board has misapplied Article 7(8); the purpose of Article 7(8) is to allow the request to be specified within the time limit for a response. Article 7(8) must be invoked “at the latest within one month of receipt of the request”. The Board can no longer use Article 7(8) since the time limit has expired. The Board didn’t give me an opportunity to clarify the request within the time limit and in fact extended the time limit, which means the Board was able to identify the scope of the request and cannot now argue that it is formulated too generally. In any event it is not formulated too generally.
6. Please note that my interpretation of the response is that the Board has breached Article 5(3)(b) since it has either refused to show or is incapable of demonstrating how it complies with Article 5(3)(b) of the EIA Directive. I wish this to be specifically considered in the response, since it may be the case that this AIE request will be relied on in future litigation.
7. I note that no one from the Board ever contacted me about the scope of the request but I am happy to consult by phone if someone wants to discuss it”.
5. On 24 April 2025, ACP issued its internal review decision, affirming the original decision, stating:
On review of all correspondence concerned, it is acknowledged that the invitation to clarify or narrow your request under Article 7(8) of the AIE Regulations was issued after the initial one-month decision period had passed. This was not in line with the Regulations, and we regret this error. While the delay was due to the complexity of the request and internal consultation needs, the invitation should have been made, however, within the original timeframe. This will be communicated to the relevant internal personnel going forward .
Article 5(3)(b) of the EIA Directive requires competent authorities to ensure access to expertise in each specific case where an EIAR is assessed. Your request, while listing specific disciplines (e.g. acoustics, biodiversity), sought general information about the Board’s approach to expertise. Article 5(3)(b) of the EIA Directive requires competent authorities to ensure expertise on a case-by-case basis. It does not require a fixed staff structure or published list of experts. Therefore, the request could not be answered in a generalised way without referring to specific cases.
The Board uses both in-house expertise and external consultants depending on the needs of each case. Staff have relevant planning and environmental backgrounds, and outside specialists are engaged through standing panels or procurement processes. Detailed personal data (e.g. individual qualifications) is protected under Article 8(a)(i) of the AIE regulations. Your email correspondence referenced a current ongoing recruitment process where the Board is seeking external consultants. This is consistent with the Board’s position which it confirms that the Board arranges for access to the necessary expertise in line with its obligations under Article 5(3)(b).
Although the AIE Officer’s invitation to clarify the request came at a late stage in the extended timeframe, The invitation was an attempt to engage and help shape a request that could yield more meaningful results. Nonetheless, I acknowledge that this engagement could have occurred earlier in the process.
Your assertion that the Board is in breach of Article 5(3)(b) is noted. However, it falls outside the scope of the AIE Regulations, which provide a right of access to environmental information. However, the Board reiterates its commitment to fulfilling its obligations under the Directive, including through access to relevant expertise as needed.
I have reviewed the decision taken by the AIE Officer in relation to your request and in accordance with article 11(2)(a) of the AIE Regulations 2007, I affirm the decision. While acknowledging the procedural concerns you raised regarding the extension of time, I am satisfied that the substantive response was appropriate. The information you seek is not held in a generalised or compiled form and, where relevant, is context-dependent and managed on a case-by-case basis. You are encouraged to submit a more targeted AIE request if you wish to pursue this matter further—for example, by identifying a specific application. An Bord Pleanála is open to providing support or guidance to assist in the formulation of future requests, should that be helpful to you”.
6. On 28 April 2025 the appellant appealed to this Office, the appeal concerns points 1-3 of the AIE request and further details of the basis for this appeal will be outlined in the ‘Position of the Parties’ paragraph below.
7. 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 An Coimisiún Pleanála. 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’).
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 a public authority to make available environmental information to the appellant.
9. An Coimisiún Pleanála relied on article 7(8) of the AIE Regulations in refusing access to the information requested outside of the permitted timeframe as part of its original decision, which is procedurally incorrect. Article 7(8) allows the public authority to engage with an appellant in order to reformulate a request if it contends that it is formulated in too general a manner before a decision is issued, if an appellant does not consent to reformulation the public authority can then invoke article 9(2)(b) to refuse access to the information in its subsequent decision. In this case however, I note the appellant’s statement (albeit outside of the 7(8) timeframe) that he was unwilling to reformulate the request as he did not view the request as formulated too generally and, the contentions put forward by ACP regarding the refusal of the information which in my view refer to the provisions of article 9(2)(b). I therefore accept the appeal as one concerning the refusal of information under 9(2)(b) and accordingly the scope of the review is limited to this.
10. As the appellant has confirmed that part 4 of the request was provided by ACP, this review concerns parts 1-3 only.
11. 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 for the public authority for the purposes of this decision is An Coimisiún Pleanála. Any references to An Coimisiún Pleanála which predate 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.
12. On 30 May 2025, ACP provided a submission to this Office outlining its position with respect to the appeal. The submission summarises the correspondence between ACP and the appellant with respect to the appeal, stating that after the request was submitted:
“The Board responded to the request on 21 March 2025 indicating that the request, in the form outlined above, was: "in too general a manner in circumstances where the obligation under the EIA Directive relates to an EIAR in an individual case and therefore any consideration of sufficiency of expertise is required to be considered against a particular EIAR in a particular application for development consent and this cannot be addressed in a general sense in respect of relatively broad categories of expertise. The expertise required under those headings may differ from case to case." On this basis, the Board invited the Appellant to submit a more specific request pursuant to Article 7(8) of the AIE Regulations ”.
13. ACP contend that “The Appeal appears to have been submitted by the Appellant without setting out the basis for disagreeing with the Board's position. This makes it somewhat difficult for the Board to address the substance and merits of the appeal ”.
14. With respect to the internal review request and response, ACP submit the following:
The Board is required, upon receipt of a valid request, to provide access to environmental information held by or for it unless an exemption applies and the public interest favours withholding the information.
Article 3(1) of the AIE Regulations sets out that "'environmental information' means any information in written, visual, aural, electronic or any other material form… in the possession of a public authority that has been produced or received by that authority". Therefore, environmental information is considered to be something that is actually in existence.
The Board is required to carry out a reasonable search for any records falling within the scope of a request. The Board is not however required to create new records in order to respond to a request if the information does not otherwise exist in a material form. The Board's position is that the Appellant's request is framed in terms which, in effect, requires the Board to determine what is "sufficient expertise" to examine Environmental Impact Assessment Reports (EIARs) in the areas of expertise outlined by the Appellant, some of which are framed in very general terms on any possible reading of them.
1. ‘This request is made for future use in case a client wants to argue that the Board has breached Article 5(3)(b), it is not referrable to a particular EIAR, although that being said the areas of expertise identified are common across a large range of projects. For the avoidance of doubt this provision of the EIA Directive places a positive statutory obligation on the Board to ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report. I find it hard to believe that the Board doesn’t know what resources are available to provide this expertise in advance of receiving an EIAR when its job is to ensure the expertise’.
The Appellant has indicated that the request is made "…for future use in case a client wants to argue that the Board has breached Article 5(3)(b), it is not referrable to a particular EIAR …".
The Appellant's request is carefully worded with express reference to a specific obligation in the EIA Directive and warrants a careful and considered response, particularly given the Appellant's indication that "this AIE request will be relied on in future litigation" and that "this request is made for future use in case a client wants to argue that the Board has breached Article 5(3)(b)".
The reference in Article 5(3)(b) of the EIA Directive to "sufficient expertise" is case-specific. The obligation arises in an individual case where the Board is required to ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report (EIAR) in a particular application for development consent. The Board cannot determine in a vacuum what sufficient expertise is.
Recital 33 to Directive 2014/52/EU (which amends the 2011 EIA Directive) states: "Experts involved in the preparation of environmental impact assessment reports should be qualified and competent. Sufficient expertise, in the relevant field of the project concerned, is required for the purpose of its examination by the competent authorities in order to ensure that the information provided by the developer is complete and of a high level of quality ." (emphasis added).
It is clear from the recital and the actual wording of Article 5(3)(b) that "sufficient expertise " relates to the project and EIAR under consideration by the competent authority in a particular case.
One of the areas of expertise referenced in the Appellant's request to the Board dated 21 January 2025 was "assessment of the integrity of European Sites under the Habitats Directive ". The vast majority, if not all, of the Board's Inspectors and board members will have some expertise in this area but whether that expertise is sufficient for a particular case is something that requires to be considered on a case-by-case basis. That is clear from the terms of the Directive. The High Court (Humphreys J) in in Kennedy v An Bord Pleanála & Ors [2024] IEHC 570 indicated that the determination of expertise "should be made on a case by-case basis rather than an overall basis" and further that "The complaint is that the board didn't have the expertise, not that it didn't lawfully satisfy itself on a case-specific basis as to its expertise in relation to the particular environmental report (which is in fairness what art. 5(3) of the directive does in effect say).
The Court was also clear that the Board's collective expertise generally could not be relied on in a particular case but rather that it was the individuals involved in the decision-making process including the inspector, Board Members and external expertise, if any. Therefore, it is not possible to address the Appellant's request by reference to "sufficient expertise" as that is determined on a case-by-case basis.
By way of analogy, pursuant to the Law Society Code of Conduct a solicitor should not accept instructions to act in a matter for which they do not have sufficient expertise. Whilst there are broad areas of competence such as civil litigation, it would be necessary for a firm of solicitors to understand the specific nature of the matter in order to consider which solicitor(s) has sufficient expertise to act in the particular matter. It would not be acceptable to apply a broad-brush approach that anyone with civil litigation experience can act in any civil litigation matter regardless of complexity.
In the same way, the obligation in the EIA Directive applies on a case-by-case basis and the application of individual expertise requires a consideration of what is required on a case-by-case basis having regard to the nature of the project. The Appellant is in effect asking the Board to identify everyone with "sufficient expertise" to examine an EIAR in relatively general areas of expertise regardless of project type or scale.
The Appellant was invited to make a more specific request but elected not to do so. The Appellant instead submitted a separate request to the Board by email dated 25 March 2025 as follows:
"Please provide the Board’s procedures for applying Article 5(3)(b) of the EIA Directive to ensure that the Board has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report. What I am looking for is a description of the procedure the Board adopts when it receives an application or appeal that requires EIA to identify the particular expertise required and how it ensures that the appropriate expertise is deployed to examine the EIAR on a case by case basis ."
In the Board's submission this amounts to a tacit acceptance by the Appellant that the request in this matter was worded too generally but for some reason the Appellant has decided to pursue this appeal and a separate request rather than reword the request in this matter. In circumstances where the Appellant refused to make the request more specific, the request was invalid.
2. ‘The request is not formulated to [sic] generally it is quite specific to the type of disciplines involved and it is surprising that the Board can’t identify how it maintains expertise in these areas given that it is supposedly an expert decision-maker and invariably relies on its expertise when it makes and defends its decisions and it has a positive statutory obligation to have or have access to the expertise. It is not credible that the Board only acts in a reactive manner when it receives an EIAR given that the Board, as far as I know, doesn’t hire employees based on individual applications for permission and also has to obey procurement rules so if it is to outsource the expertise it will already have identified providers because it would take too long to run a procurement in response to the receipt of an EIAR. The response therefore is completely inadequate and appears to be simply used as a way to avoid answering the request.’
As set out above, the Board is unable to address the Appellant's request by reference to a general reference to an EIAR prepared pursuant to the provisions of the EIA Directive. The Board cannot identify in a factual vacuum individuals with sufficient expertise to examine any EIAR in any case. By letter dated 24 April 2025, the Board suggested to the Appellant that he might consider submitting a more targeted AIE request in order to pursue the matter further. In circumstances where the Appellant indicated in point 1 above that "This request is made for future use in case a client wants to argue that the Board has breached Article 5(3)(b)…", it is clearly important that the Board's response is accurate and clear which can only be done if the Appellant submits a valid request to the Board which can be properly understood. As indicated above, Humphreys J held in Kennedy that the obligation in Article 5(3)(b) falls to be considered on a case-by-case basis therefore the Appellant's request is misguided. It would not be acceptable in a specific case for the Board to say that it has the expertise somewhere in the organisation (or that it is able to avail of the expertise externally) to examine a particular EIAR, there has to be sufficient expertise deployed in that particular case to examine that particular EIAR.
In the same way, the Board cannot determine what "sufficient expertise " in the context of the EIA Directive means in a general sense as the word "sufficient " in the EIA Directive relates to a particular EIAR.
3. ‘If there are different resources available for sub-disciplines identified then please identify all of the resources in each area’- As above, this is premised on the Board identifying what sufficient expertise means and it is not possible to do so in a general sense and the Board relies on the above submissions in this regard .
4. ‘The Board is currently running a procurement process for specialist consultants, if what the Board has said in response to my request is true, then how can it identify suitable consultants merely by reference to an area of expertise (https://www.pleanala.ie/en-ie/careers/careers-specialistconsultants)? This competition contradicts the response to my request .’
The Appellant's suggestion that the Board's procurement process to engage specialist consultants contradicts the Board's response to the request is misconceived. There are a significant number of individuals within the Board and inspectorate, as well as external consultants engaged by the Board on an ad-hoc basis, who have some expertise in the assessment of the categories referred to in the Appellant's initial request to the Board dated 21 January. However, the degree of expertise required in a particular case may vary significantly. This range of degrees of expertise is reflected across the Board and Inspectorate and the external consultants for all of the requester's categories such that many individuals may have some expertise in the areas identified but whether that expertise is sufficient will depend on the actual application for permission which is before the Board. If there is an individual planning application that the Appellant is concerned with, he is entitled to request information regarding the expertise deployed in a particular case and any assessment of the sufficiency of expertise can be considered in that context.
Further, as the Court noted in Kennedy, "as the Commission points out, experience as opposed to mere qualifications can qualify someone as an expert. That is only common sense anyway, especially in a changing field such as environmental assessment ." Therefore sufficiency of expertise will require consideration of an individual's relevant experience and logically how relevant experience is can only be considered on a case-by-case basis. Therefore, the request as framed is far too general as it either is to be understood as a request for anyone with any expertise in any of the topics identified by the applicant or anyone with "sufficient expertise" to examine some yet to be identified EIAR in some yet to be identified project. In either case the request falls to be refused under Article 7(8) and the Appellant has refused to revise the request in order to comply with the requirements of the Article 6(1)(d).
5. ‘The Board has misapplied Article 7(8), the purpose of Article 7(8) is to allow the request to be specified within the time limit for a response. Article 7(8) must be invoked “at the latest within one month of receipt of the request ”. The Board can no longer use Article 7(8) since the time limit has expired. The Board didn’t give me an opportunity to clarify the request within the time limit and in fact extended the time limit, which means the Board was able to identify the scope of the request and cannot now argue that it is formulated to [sic] generally. In any event it is not formulated too generally.’
Article 7(8) of the AIE Regulations provides that: "Where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request ."
Whilst the Board's response to the Appellant's request was outside the timeframe in Article 7(8), the Board has admitted its error in this regard, which arose due to the complexity of the request and the need to consult internally to formulate a substantive response to it. The Board addressed the Appellant's request as soon as was feasible having regard to the internal liaising that was required. The slight delay in issuing a response to the request cannot cure the fact that the Appellant's request was framed in too general a manner, however. The Board regrets that in this instance the invitation to the applicant pursuant to Article 7(8) was made outside the timeframe and the Board will endeavour in future to raise any issues with a requester within the one-month period.
6. ‘Please note that my interpretation of the response is that the Board has breached Article 5(3)(b) since it has either refused to show or is incapable of demonstrating how it complies with Article 5(3)(b) of the EIA Directive. I wish this to be specifically considered in the response, since it may be the case that this AIE request will be relied on in future litigation.’
The requirement on the Board set out under Article 5(3)(b) of the EIA Directive is to "ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report ...". The Board has indicated by letters dated 21 March and 24 April 2025 that the Appellant's request is framed in too general a manner. The Board has suggested to the Appellant to submit a more targeted request in relation to a specific planning application to assist the Board in providing the Appellant with a response that is of assistance to him. The Appellant's submission appears to misunderstand the obligation on the Board under Article 5(3)(b). For the avoidance of doubt, the Board strongly refutes any suggestion by the Appellant that it has breached Article 5(3)(b).
7. ‘I note that no one from the Board ever contacted me about the scope of the request but I am happy to consult by phone if someone wants to discuss it .’
By letter dated 25 April, the Board suggested that the Appellant should submit a more targeted request if he wished to pursue the matter further. By way of assistance to the Appellant, the Board suggested that the Appellant may wish to identify a specific planning application with which he was concerned. Furthermore, the Board indicated that it was open to providing support or guidance to the Appellant in the formulation of future requests. It is clear that the onus was on the Appellant to contact the Board in relation to narrowing the scope of the request or submitting a future, separate, request. The Board does not accept the suggestion that it was required to make further contact with the Appellant in relation to the scope of the request. As indicated above, the Appellant elected to submit a separate request rather than reformulate the request in this matter so as to make it valid under the Regulations”.
15. The appellant provided a submission to this Office on 4 June 2025 outlining his position, key contentions put forward are detailed below.
16. With respect to the nature of the request, the appellant states:
“The Board mistakenly interprets my request as seeking case-by-case information without specifying which case I am referring to. This is incorrect, the Board did not interpret the request objectively nor did it genuinely seek clarification .
The purpose of the request is clearly to identify the expertise (internally or externally) by profession or general competence that is available to the Board and from which it would draw on a case-by-case basis. Indeed, this is how the Board itself advertised for potential external experts, by profession, in precisely the same way that I framed my request .
For the avoidance of doubt, I don’t believe the Board acts in a reactive way when it receives an EIAR, in other words I don’t believe the Board will source expertise de novo at the point of receipt of an EIAR. In particular I don’t believe the Board will generally hire a new employee or consultant reactively to an EIAR since it would take too long. It is my belief that Board has internal and external panels of people/consultants with expertise and that it draws from these individuals when and if needed. The purpose of the request was to identify the members of these panels along with basic details about their qualifications and experience .
As the Board itself admits, its staff have relevant planning and environmental backgrounds, and outside specialists are engaged through standing panels or procurement processes .
So, the purpose of my request is clearly to identify which are the relevant staff and who are on the panels. So for example, if the Board has (say) 5 internal staff with expertise in acoustics and (say) 2 external experts the public concerned with a windfarm development that has noise issues can therefore easily check that the Board has drawn from this panel of expertise and if necessary go to court if the Board didn’t deploy the expertise that it had or had available to it .
The precise expertise of an individual expert is a different matter, and that was what the Kennedy case cited above was really about. The thrust of my request is aimed at a more macro consideration to ensure that the Board actually has panels of experts and that it actually uses that expertise, not to scrutinise individual expertise relative to a particular EIAR .
I fail to see how this is controversial ”.
17. With respect to the internal review decision, the appellant states:
“The internal review decision is very hard to understand. My interpretation of the internal review is that the Board holds the information but is refusing to release if based on Regulation 8(a)(i). If this is not what the Board is actually saying I would be obliged if it could be asked to clarify the basis for refusing the request and that I be allowed to make a further submission. I don’t believe the internal review maintains that the request is formatted too generally, given that the Board admitted that this provision could not be relied on when the Board had already identified the scope of the request and extended the period for a decision. I would point out though that I was never contacted during the handling of the request seeking clarification. It’s not good enough to invoke Regulation 7(8) at the point of a decision, the intention behind this provision is that clarification is sought as soon as possible and before a decision is made. This didn’t happen and no explanation has been given why it didn’t happen. From my point of view this provision has been invoked as a pretext to avoid providing information ”.
18. With respect to ACP reference to article 8(a)(i) of the AIE regulations, the appellant states:
“Assuming the Board has invoked Regulation 8(a)(i) to refuse the request I make the following submission .
First the identity of the Board’s staff and Board members involved in decision-making is not confidential. The Board’s inspector signs the inspector’s report with their own name and if there is an internal memo, e.g. from an ecologist or an environmental scientist then there will be a memo identifying them on the Board’s file. Many of these people have LinkedIn profiles. Similarly, the identities of the Board members and their backgrounds are published by the Board .
The identities of external consultants and their qualifications and experience is also not confidential. These are people providing a service and do so in the open. Their reports are routinely published on planning files up and down the country. To provide their service they have to disclose their qualifications and experience (see attached EIAR excerpts ).
Based on the above, Regulation 8(a)(i) is not engaged since it only applies to confidential personal information and the information that I have sought is not confidential. In the alternative, the public interest favours disclosure .
As detailed above access to sufficient expertise is an important obligation of the competent authority to ensure the integrity of the EIA process and for environmental protection. The public should be able to check (a) in advance that the Board firstly has a sufficient panel of expertise available to it and (b) on a case-by-case basis that it has drawn from that pool of expertise in a way that is compatible with the EIA Directive .
The first point above is what this request is about. Has the Board filled its panel with sufficient expertise, the request is not concerned with the draw-down of expertise in an individual case but the logically prior question of whether there is a pool of expertise at all for the Board to draw from. With this information the public can be satisfied that the Board has the range of expertise that it needs and can react quickly when a new EIAR is submitted .
It would be disadvantageous to decision making if the Board had to spent an inordinate amount of time sourcing sufficient expertise leaving less time for review and decision making .
There is a lot of publicity nowadays about the lack of qualified professionals in the planning area, it is important that the public can be satisfied that the Board is not found wanting in relation to sourcing its own expertise .
On the other hand there is no real prejudice to disclosing information that is already in the public domain and/or which is commonly made available by people acting in a professional capacity, particularly where they are holding themselves out as experts ”.
19. Article 9(2)(b) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8). Article 9(2)(b) seeks to transpose article 4(1)(c) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is formulated in too general a manner, taking into account article 3(3), and, in turn, is based on part of article 4(3)(b) of the Aarhus Convention.
20. Article 9(2)(b) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
21. The Minister’s Guidance at paragraph 12.8 states the following:
“Article 9[(2) …] clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate .”
22. In the original decision ACP state that it considers part 1-3 of the request is formulated in too general a manner “in circumstances where the obligation under the EIA Directive relates to an EIAR in an individual case and therefore any consideration of sufficiency of expertise is required to be considered against a particular EIAR in a particular application for development consent and this cannot be addressed in a general sense in respect of relatively broad categories of expertise ”, inviting the appellant to make a ‘more specific’ request and offering assistance regarding same. In the internal review request, which followed the decision, the appellant highlighted that ACP had failed to invoke 7(8) in the required timeframe, which ACP acknowledged and provided apologies for in its internal review decision.
23. It is ACP position that the request is formulated in too general a manner because it does not refer to a specific EIAR, contending that it cannot provide the information requested in the absence of referral to a specific case, as it “cannot determine in a factual vacuum what sufficient expertise is”. ACP further state in its submission that “there are a significant number of individuals within the Board and inspectorate, as well as external consultants engaged by the Board on an ad-hoc basis, who have some expertise in the assessment of the categories referred to in the Appellant's initial request to the Board dated 21 January. However, the degree of expertise required in a particular case may vary significantly ”.
24. While I acknowledge ACP have outlined its position regarding the challenges it states it has with providing the information, its reasoning for being unable to provide it, in my view, relates to its position that the information requested can only be identified with respect to a specific case, that it is being asked to provide information relating to a hypothetical EIAR and is unable to do so. This reasoning is not however, to my mind, concerned with the request itself being formulated too generally. I am of the view that the appellant’s request cannot reasonably be described as formulated “in too general a manner.” In my view, the request has been worded in such a manner so as to limit its scope to a specific category of environmental information, that is, how the Board of ACP comply with article 5(3) of the EIA Directive, across the six areas outlined. It is my understanding from the wording of the request, that the information requested primarily relates to the qualifications, work history and professional experience of internal staff and external consultants who examine EIAR’s on behalf of ACP, with respect to six specific areas.
25. I note that in its internal review decision ACP state that “Staff have relevant planning and environmental backgrounds, and outside specialists are engaged through standing panels or procurement processes. Detailed personal data (e.g. individual qualifications) is protected under Article 8(a)(i) of the AIE regulations”, noting further in its submission to this Office that “The Board is required to carry out a reasonable search for any records falling within the scope of a request. The Board is not however required to create new records in order to respond to a request if the information does not otherwise exist in a material form”. The above two statements refer to specific provisions under the AIE Regime [article 8(a)(i) and article 7(5)] which to my mind further support the view that ACP have relied incorrectly on article 9(2)(b) to refuse access to the information requested. That is, rather than the request being phrased in too general a manner, the information may not be held by ACP or is held but it is ACP’s position that it should be refused under another AIE exemption.
26. Accordingly, I find that ACP cannot rely on article 9(2)(b) of the AIE Regulations in refusing access to the information sought.
27. While ACP state, as referenced above, that the information ‘does not otherwise exist in a material form’ it has failed to detail any searches undertaken to identify information falling within the scope of the review, to evidence this. If a public authority is seeking to rely on the position that information sought in an AIE request is not held by or for it, it has a duty to outline the searches it has undertaken with respect to same, in order to rely on the correlating provision with the AIE regime, that is, article 7(5).
28. As noted in paragraph 25 ACP make reference to information it appears to hold concerning personal data of staff, however as this Office has not been provided with any records to allow a determination of their relevance to the request nor search efforts undertaken to satisfy that all reasonable steps have been taken to infer that no further information exists, it would be inappropriate for the Commissioner to direct release of it at this stage. While this may be a disappointment to the appellant, it is in my view, the most appropriate course of action.
29. Accordingly, in this instance I direct ACP to undertake a fresh internal review decision which is informed by searches it is obliged to undertake for information relevant to the request.
30. As I have found that article 9(2)(b) does not apply in this case it is not necessary for me to consider the application of article 10.
Having carried out a review under article 12(5) of the AIE Regulations, I annul ACP’s decision and direct it to undertake a fresh internal review.
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.
Gemma Farrell
On behalf of Commissioner for Environmental Information