Decision
Mr. Pat Swords and RTÉ
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/09/0015
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/09/0015
Published on
Appeal to the Commissioner for Environmental Information
European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)
Appellant: Mr Pat Swords
**Whether RTÉ is a public authority for the purposes of Directive 2003/4/EC and the Regulations and whether it was justified in its refusal of access to environmental information concerning the criteria which it uses in regard to assessment of environmental impact, pollution, risk and hazard in reporting news connected to the "Environmental Acquis and industrial development"; qualifications of RTÉ personnel reporting on such matters; names and qualifications of all RTÉ researchers in the last 3 years responsible for editing and producing programmes related to the Corrib development; RTÉ policy in regard to "its obligation under the Aarhus legislation for dissemination of environmental information".
Note: RTÉ has since clarified that it has accepted since the coming into force of the Regulations that it is a public authority for the purposes of the Regulations and the Directive.**
The Commissioner found that RTÉ was justified in its decision to refuse the request on the basis that it did not hold environmental information within the scope of the request. She varied the decision to reflect her findings. She found that RTÉ comes within the definition of ''public authority'' in the Regulations and the Directive. She found that items 2 and 3 of the request did not come within the definition of environmental information. She further found that section 7(5) of the Regulations allows RTÉ to refuse a request in relation to items 1 and 4 of the request on the basis that the information is not held by it.
On 26 October 2009, the Appellant made a request for environmental information to RTÉ under the Regulations, seeking :
1. The criteria RTÉ uses with regard to assessment of environment impact, environmental pollution, acceptable risk, unacceptable risk, unacceptable hazard;
2. The qualifications of RTÉ personnel who are reporting on matters relating to industrial development and implementation of the Environmental Acquis with regard to objectivity and accuracy;
3. The names and qualifications of all RTÉ researchers who in the last 3 years have been responsible for editing and producing programmes relating to the Corrib Gas development in North West Mayo;
4. RTÉ's policy with regard to its obligation under the Aarhus Convention for dissemination of environmental information.
The Appellant made criticisms of RTÉ's reporting of environmental matters, especially the coverage of the installation of the gas pipeline and terminal in Co Mayo.
In its response of 27 October 2009, RTÉ said that it did not carry out any of the functions mentioned in the first part of the request. In regard to the second and third parts, it said that it was not accepted that the information sought was environmental information. In response to the fourth part, RTÉ said that it cannot accept the claim that it had failed in any respect of its reporting . The Appellant, on 27 October 2009, responded to RTÉ's decision; this was accepted as an internal review application. He again commented on RTÉ's obligations and performance and said that items 1- 4 as requested by him had not been addressed as required under the legislation.
RTÉ internal review decision issued on 29 October 2009. It upheld the original decision stating that neither the Directive nor the Aarhus Convention apply to RTÉ and that if a complaint about its journalism was intended, this should be directed to the Broadcasting Authority of Ireland. The Appellant, on 31 October 2009, forwarded copies of the correspondence to my Office together with his concerns about how EU Environmental Policy is being portrayed in the Irish media. My Office contacted him to establish if he intended to appeal under the Regulations. He confirmed that he wished to do so and paid the statutory appeal fee.
I have taken account of the submissions of the Appellant and RTÉ, the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive). What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Elizabeth Dolan, Senior Investigator in my Office, sent her preliminary views to the parties on 20 April 2010. A detailed response was submitted by the Appellant on 22 April 2010 and RTÉ confirmed that it did not wish to make further submissions. I have decided to bring this appeal to a conclusion by way of a formal binding decision.
Among the circumstances where requests are deemed to be refused under the Regulations (Article 11 refers) are those in which it is contended that a body is not a public authority for the purposes of the Regulations. Under Article 12 of the Regulations, I must review the decision of RTÉ and affirm, vary or annul the decision. I wish to emphasise that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally. This means that my Office does not have the authority to investigate complaints against public authorities or to provide an alternative dispute mechanism with respect to actions taken or not taken by public authorities; my role is confined to that prescribed in relation to appeals against decisions on requests for access to environmental
The Appellant's submission is that RTÉ is a public body with obligations under Directive 2003/4/EC. He argues that detailed regulatory submissions such as that prepared by the developer in the Corrib Gas case fall within the scope of the Directive and that bodies such as RTÉ have obligations relating to dissemination of such environmental information. He says that his request covers criteria for quality control because what has occurred in reporting of the Corrib and other development is ''unchecked sensationalist coverage'' . He refers to and encloses copies of guidelines and reports relevant to RTÉ and to the Corrib development together with copies of his exchanges with RTÉ in relation to his request.
The Appellant's response to my Office's preliminary views, accepts the views of the Senior Investigator; however, he requires a formal decision.
RTÉ 's position on the appeal is that it now accepts that it is a public authority for the purposes of the Regulations ** but takes the view that the request does not cover environmental information held by it by reference to the statutory definition. In any case, it says that it does not hold the information sought at items 1 and 4 of the request. In relation to items 2 and 3, it argues that information on the qualifications and training of staff who have worked on reporting on the Corrib Gas field is not environmental information. It says that all its journalistic staff are recruited by public competition and have third level qualifications. It further states that the search necessary to establish which staff worked on relevant programmes would be onerous given the number of stories covering the Corrib Gas situation and the variety of personnel involved. It queries whether the personnel information involved in staff files would constitute the personal information of individual staff. It confirms that specific in-house training on environmental maters had not been provided to staff.
**RTÉ subsequently clarified that it had always accepted that it is a public authority subject to the Regulations and the Directive.
The Directive and Regulations set out the following definition in relation to what may be requested:
"environmental information held by a public authority" means environmental information in the possession of a public authority that has been produced or received by that authority;"
Article 3(1) of the Regulations defines "environmental information" as"any information in written, visual, aural, electronic or any other material form on- ".
(a) the state of the elements of the environment... and the interaction among these elements,
(b) factors, ... affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures)...designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost benefit and other economic analyses and assumptions used ...
(f) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c);"
In the Regulations "public authority" means, subject to sub-article (2) -
(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) any natural or legal person having public responsibilities or functions,
or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),
and includes—
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held—
(I) by or on behalf of a Minister of the Government,
(II) by directors appointed by a Minister of the Government,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;
Article 7(5) of the Regulations provides :
"Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall information Appellant as soon as possible that the information is not held by or for it."
Firstly, I should say that I agree with Ms Dolan that criteria and policies of the kind requested at items 1 and 4 could, if held, constitute environmental information under one or more of the information categories listed in the definition. However, I do not need to make a formal ruling on this aspect of the appeal given my findings below.
I am satisfied that RTÉ, as a body established by or under statute with public administration functions and responsibilities at national level, is a public authority within the meaning of the Regulations. It is not necessary that a body be directly or primarily involved in work of an environmental nature. Clearly, not all of the information held by RTÉ is environmental information nor do all of its functions and activities relate to the environment. However, this does not affect its status as a public authority. The fact that information held might comprise journalistic work would not , in itself, place RTÉ or any environmental information held by it, outside of the scope of the Regulations or the Directive. Given that RTÉ appears to have accepted that it is a public authority for the purposes of this appeal, it is not necessary for me to examine the matter further. I find that RTÉ is a public authority for the purposes of the Directive and the Regulations.
The Regulations and Directive refer to information in the possession of a public authority and produced or received by it. Article 7(5) of the Regulations allows a public authority to effectively refuse a request by notifying the requester that it does not hold the material sought. There is also provision whereby a public authority that is aware that the information is held by or for another public authority, shall transfer the request. This indicates that the Regulations and Directive envisage situations in which it is legitimate for a public authority to refuse access simply because it does not hold or control the information sought. "The Aarhus Convention: an Implementation Guide" [ECE/CEP/72] says that if the public authority does not hold the information requested, it is under no obligation to secure it. It goes on to suggest that failure to possess environmental information relevant to a public authority's responsibilities might be a violation of Article 5, paragraph 1(a) of the Convention which relates to the requirement that public authorities collect, possess and disseminate environmental information.
A similar provision in relation to records ''not held'' exists in Section 10(1)(a) of the FOI Acts. I am guided in my approach by the Office of the Information Commissioner's experience over the past 11 years. In cases where the public authority claims not to hold the environmental information requested, my role is to decide whether the decision maker has had regard to all the relevant evidence and where relevant to assess the adequacy of the searches conducted by the public authority in looking for relevant records. My Office's in search cases was upheld in a decision of the High Court in the case of Ryan v the Information Commissioner Unreported May 20 2003.
In relation to the interpretation of Article 7(5) of the Regulations, I have taken a similar approach to that developed and approved by the High Court under FOI. Ms Dolan put this position to the Appellant and expressed the view that RTÉ did not hold the information sought at 1 and 4 of his request. She did not consider that my Office was required to pursue the question of whether RTÉ should develop criteria and additional records of the kind sought. The Appellant has accepted that position but requests me to make a formal finding on it. I find that RTÉ is justified in refusing the request in relation to items 1 and 4 on the basis that it does not hold such environmental information.
I have examined the definition set out above. I consider that the names, qualifications and training of RTÉ staff reporting on or researching environmental issues and industrial development matters are not within the definitions of information on the state of the elements of the environment nor are they factors or substances or emissions which might affect those elements. I concur with Ms Dolan's view that such staff information is not encompassed by administrative measures, plans or programmes affecting the elements and designed to protect the environment. The information is not in reports of the type found in the definition. I conclude that the link between the staff of RTÉ and the state of human health and safety, conditions of life, cultural sites and built structures inasmuch as they may be affected by or through the elements of the environment is not sufficiently strong to bring this information within the definition.
I find, therefore, that items 2 and 3 do not constitute environmental information and thus, it is not necessary to consider whether any of the exceptions in the Regulations apply.
I find that RTÉ was justified in its decision to refuse the request . However, I vary that decision to reflect the revised basis for refusal as set out above.
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 is given.
**Emily O'Reilly
Commissioner for Environmental Information
10 May 2010**