Decision
Ms. C and An Bord Pleanála
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141679-B0F0B5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141679-B0F0B5
Published on
Whether ABP was justified in refusing the appellant’s request on the basis that no environmental information within the scope of that request is held by or for it in accordance with article 7(5) of the AIE Regulations
12 December 2024
1. On 3 March 2023, the appellant requested the following information from ABP:
“the following information is requested under the Access to Information on the Environment Regulations regarding the Laois-Kilkenny Reinforcement Project. (this is an ESB/EirGrid project. The primary ABP planning decision is under reference VA0015, however, other references should be considered if necessary to identify relevant records).
1.The An Bord Pleanala (ABP) Board met on at least four separate occasions to discuss the Laois-Kilkenny Reinforcement project prior to making a final primary planning decision VA0015. Can you please provide:
a) the dates of all ABP Board meetings incl. the minutes (not just lists of attendees) of each of those meetings where this application was discussed incl. the information relating to this project which was provided to each of those meetings;
b)a description of the deliberation process at ABP Board meetings i.e. why were at least 4 meetings necessary for this project? Was the information available insufficient to make a planning decision?
c) In the interval between the receipt by ABP of the final EIS and the date of the final ABP Board decision VA0015 - All versions of the 'inspectors report' (as well as drafts) and all requests for changes (additions, amendments, alterations, clarifications, deletions) to the reports including internal correspondence relating to same.
2.A description of the process used by ABP to incorporate information submitted during oral hearings into the final Inspector's report.
e.g. much information including concerns was provided verbally. As no transcripts are available, what process/procedure was used to capture the issues raised, analyse these and incorporate them into the final report? Likewise, written information was also provided at the oral hearing.
3.The aforementioned ABP decision VA0015 was subsequently challenged via Judicial Review - Case 2014 No 340 JR. Regarding this,
a) Can you please confirm, who within ABP was responsible for directing ABP's solicitors/legal team on this judicial review. b) Please provide all documentation authorising the responsible person/persons to direct ABP's solicitors/legal team on this matter (please include guidance or limits to this authority to direct the legal actions/legal team). c) Please provide documentation appointing ABP's solicitors/legal team to this case. d) The dates of ABP Board meetings where this legal action was discussed, incl. the associated minutes (not just attendees).
4. a)A copy of the ABP decision deciding that the developer, not ABP, was to manage the planning application information for the environmental public consultation (see http://www.eirgridlaoiskilkenny.ie) and
b)the instructions to the developer for how this environmental planning documentation was to be managed.
c)confirmation whether ABP now take responsibility for the website http://www.eirgridlaoiskilkenny.ie
d)please provide a link to the subsequent environmental information relating to the discharge of the planning conditions.”
2. The appellant clarified, in her appeal to this Office, on 21 August 2023, she is appealing Part 1 (C) and Part 2 of her request only (seeScope of Review paragraph below). Therefore, for the purposes of quoting the correspondence from the public authority I will focus on the paragraphs which relate to these parts of the appellant’s request only.
3. ABP issued its original decision on 4 May 2023. It said:
“1.C It is the practice of An Bord Pleanala that all records pertaining to a case are located on the case file including any draft documents and correspondence. The case file is available for viewing through our public access service. I enclose the contact details for our public access team below. You may view the file in person at our offices or they can facilitate arrangement for soft or hard copies to be made.”
2.Once the oral hearing is completed, the inspector prepares a report and a recommendation for the Board. This includes consideration of all case documentation, including the information heard during the oral hearing. The Board considers the Inspector’s Report and all case documentation and issues a decision. The inspector’s Report, Board Direction and Board Order are made available on www.pleanala.ie”
4. The appellant requested an internal review from ABP on 23 May 2023. She said:
“1 c) No search appears to have been carried out to identify the requested information. Please note, that at personal loss, I have previously taken annual leave and have personally looked through the files available through the ABP public office. No drafts of inspectors’ reports or other information requested in this section were obvious at that time and are likely not within the public file. I would appreciate if this requested information could be provided now via this AIE process rather than directing me to another section within ABP. i.e. this section remains fully unanswered.
2Please clarify your response - What mechanism is used for the board to consider 'all case documentation'? How is this information e.g. from the oral hearing etc. brought to the boards attention? (I cannot imagine that multiple boxes of files are transported into each board meeting.) Is the Inspector's report the key document that the board relies on for decision making.
5. ABP issued its internal review on 21 June 2023. It said:
1.(c) Please note that the case file as presented to the Board and on which the Board makes its decision is the ‘official record’ of the case file. This is the only record of the case, and it is this case file which is available for inspection by the public after a decision is made by the Board. The Board does not retain draft versions of inspectors’ reports. The final report of the Inspector as presented to the Board is the one that is on the case file.
2.All the information received at an oral hearing is before the Board when making its decision. If there are multiple boxes accompanying an application, these boxes are all before the Board at a meeting. The Inspector’s Report and all the documentation on the case is before the Board when it makes its decision. This feeds in to your query at 1(b), if there is a large amount of documentation with a case file, it can take more than one Board meeting to decide a case.
Please note that the Board Meeting Record only records that the meeting is deferred, it does not record the reason for the deferral.
6. The appellant appealed to this Office on 10 August 2023.
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 the An Bord 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. The appellant has clarified that she is appealing Part 1(c) and 2 of her request only. This relates firstly to all versions of the'inspectors report' (as well as drafts) and all requests for changes to the reports including internal correspondence relating to same – in the interval between the receipt of ABP of the final EIS and the date of the final BP Board decision VA0015. Secondly, it relates to“a description of the process used by ABP to incorporate information submitted during oral hearings into the final Inspector's report.”
9. The scope of this review is accordingly concerned with whether ABP was justified in refusing access to information falling within the scope of the request under article 7(5).
10. On 20 August 2023, the appellant submitted a copy of the relevant correspondence with ABP in relation to her request. To summarise her appeal she also confirmed:“I am appealing sections: - 1(c) - not apparent that any search for this information took place; - 2 - which is linked to 1(c).”
11. On 18 September 2023 the appellant also provided background on the project to which the request relates and detail as to why she thinks copies of the draft Inspectors’ report exist:
“Regarding point 1(c), it is notable in recent news coverage that draft versions of Inspector's reports do exist and that knowledge of changes to such are in the public interest. e.g. "Inspectors at An Bord Pleanála have officially raised concerns about being asked to change their reports by members of the board. " "Any request from board members for changes would be highly irregular as the board members are effectively using the reports to inform their judgment on whether to grant an appeal or planning application. Board members are not obliged to accept the inspector’s recommendation but reasons are usually given for not doing so. In recent weeks, the Irish Examiner and The Ditch website have reported on cases where inspectors’ reports were changed but the concerns expressed at the industrial relations meeting indicates that not just changes but recommendations are also being requested. The concerns also suggest that the practice is more widespread than has already been exposed.”
12. On 5 October 2023, ABP provided its submission to this Office:
“Background to An Bord Pleanála Procedures
It is the long-established practice for the Board to retain all records pertinent to a case within a single hardcopy case file. I enclose a copy of the ‘Public Access Guide’ which provide details. This guide is publicly available on our website.
It is important to understand that the hardcopy case file becomes a matter of public record once the final decision on the application has been made. Section146(5) of the Planning and Development Act 2000, as amended, requires that the documents relating to the matter be made available for inspection by the public within 3 days following the decision of the Board in relation to the matter. This is important for the purposes of fulfilling our duties under the FOI Act 2014 and AIE Regulations.
_Therefore, the starting position for any AIE request received, in relation to an application that has already been decided, is that all material documents are already contained on a publicly available file.
The public file does not usually contain the Board Meeting Record at which a decision on the case is made, this record which is generated from an internal IT system was issued to the requestor in response to the initial request. All other records exist on the decided case file…._
…the Inspector who facilitated the oral hearing on this case and produced a report and recommendation to the Board on this case is no longer a staff member of An Bord Pleanála. Additionally, the terms of office has expired for the Board Members who deliberated on this case. Consequently, any personal records on the case held by these individuals cannot be accessed. It would be normal practice for the AIE team to directly ask these individuals to search their personal records for any records outside of the official records on file in this case. Due to the amount of time that has passed since the decision on this case file and the timing of receipt of the AIE request, this was not a feasible option. However, it should be noted the documents to be found on the public file would be typical of the type and volume of documents generated in an application such as this case. Following a decision being taken on a case, the entire case file is retained. The most recently decided case files are kept on site and older files are held at an offsite storage facility.
Part 1(c) – in relation to “all versions of the inspector’s report’ referred to in Part 2 by the requester, it is not the practice of the Board to retain interactions of a draft inspector’s report on our ICT system. One version of the report is drafted up by the inspector and this draft is amended as necessary by the inspector until sign off by the Inspector of the “final version” and this final version is the one record of the inspector’s report on our ICT system and is the version posted on our website and recorded on the official record of the case on the hard copy file which is available for public inspection in accordance with section 146 of the Planning and Development Act 2000 as amended.
Part 2
What takes place after an oral hearing is outline on our website. Typically, oral hearings are recorded, and the recording available to the inspector and later the public. It must be noted that efforts were made by the AIE team to locate, for Part 2 of the request, a copy of an oral hearing recording for case VA0015. An oral hearing is a public meeting of a case before ABP where the parties to the appeal discuss verbally the merits of the case and the public can attend this hearing. The purpose of an oral hearing is to allow further discussion and examination of relevant issues on the proposed development by the parties to the case before the inspector. It is not intended to be overly formal or legalistic. The Board of An Bord Pleanála has the power to decide whether or not to hold an oral hearing in any case and may decide whether or not to have a recording of the hearing. The recording is used as a tool to assist the Inspector in drafting the inspector’s report and recommendation on the case to the Board. The oral hearing for this case was held on the 4th, 5th, 6th, 7th, 14th and 15th of November 2013.
The Public Access team, Strategic Infrastructure Development and ICT sections were asked to conduct a search for this recording. They were not able to locate any recording of the oral hearing for this case.
The AIE team also reached out to the company who provided the recording service for this oral hearing in 2013. The company were also unable to locate a copy, due to the age of the recording. As a consequence, the requestor was directed to view the public file which is the official record for this case.
Board manages approx. 2,500 appeals a year. Each case has its own case file. As a matter of procedure, every appeal file is screened at the final stage of the process to ensure that all relevant documentation is attached to the file. I am enclosing a ‘Appeal Formally Decided’ form that is attached to each file to record this action.
In accordance with the provisions of the AIE Regulations no available records were refused to the requestor.
The case file VA0015 was thoroughly checked, and I am satisfied that the case file contains all records on-hand pertaining to the application process after all reasonable efforts to locate further information.”
Article 7(5)
13. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. 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.
14. In cases where a public authority has effectively refused a request under article 7(5), I 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.
15. The appellant has provided this Office with background details as to why she is seeking the requested information from ABP. She has also provided detailed context around the public interest element of the request. As the scope of this appeal relates solely to whether the public authority has taken the appropriate steps to identify and locate relevant environmental information, I do not consider the public interest element of the information relevant to the specifics of this case – as it would be for example when considering whether the public authority has applied an exemption correctly when withholding information. In cases where a public authority holds information and is seeking to refuse the appellant’s request, either in full or in part, citing an exemption within the AIE Regulations, it would be expected to apply article 10 of the AIE Regulations which relates specifically to the public interest balancing test to justify its decision.
Section 1 (C) of the appellant’s request
16. ABP has identified no records in relation to the appellant’s request for environmental information. I will firstly consider whether adequate searches were carried out by ABP in relation to Section 1 (C) of the appellant’s request -“All versions of the 'inspectors report' (as well as drafts) and all requests for changes (additions, amendments, alterations, clarifications, deletions) to the reports including internal correspondence relating to same - In the interval between the receipt by ABP of the final EIS and the date of the final ABP Board decision VA0015.”
17. ABP has stated that no draft versions of Inspectors’ reports are retained or kept on its ICT system, and that the final report of the Inspector as presented to the Board is the one in the case file – and that all records relating to a case are located on the case file which is available for viewing through its public access service.
18. The appellant told us that she availed of the offer to view the case file available through its public access service - but that no drafts of the Inspector’s reports or other information requested in this section were found.
19. In submission to this Office, ABP provided further details as to the process of preparing an Inspector’s report in an effort to explain why no draft versions of the report in question exists. It said that firstly, Inspectors independently assess all relevant information, including submissions, evidence presented during oral hearings, and applicable planning and environmental regulations. ABP stated that one“single comprehensive report” is drafted up by the Inspector reflecting their professional analysis, recommendations and conclusions. This draft is amended as necessary by the Inspector until he or she signs it off as the final version. With regards any amendments made to the report before it is finalised it said:“Any adjustments or corrections to reports during their preparations (eg to address typographical errors or formatting issues) are internal to the Inspector and do not result in the creation of drafts.” The report is submitted as a finalised document to the Board for consideration. ABP explained that the final version is the only one stored on their ICT system and is the one on the official record.
20. While I accept ABP’s explanation of the process involved in preparing an Inspector’s report, and it is useful context, I would still expect a public authority in a case such as this to contact the Inspector (the report writer) and request whether any drafts exist or are held by them. I would also expect it to ask that individual to confirm whether they hold any records amounting to“requests for changes to the reports including internal correspondence relating to same” as per the appellant’s request. I consider it the case that if draft versions of such a report do exist, or indeed requests for changes, the Inspector would be best placed to confirm this and carry out a search of their records for the same. Unfortunately, on this occasion it was not possible for ABP to ask the Inspector in question to carry out such a search. It confirmed in submission to this Office that the Inspector who facilitated the oral hearing and produced a report and recommendation to the Board on this case no longer works for ABP. It has also explained that the terms of office have expired for the Board Members who deliberated on this case reference number VA0015 to which this information request relates. It said that because of this, any records on the case held by these individuals cannot be assessed.
21. ABP said it would be its normal practice for the AIE team to directly ask the Board members in question to search their personal records, but due to the amount of time that has passed since the decision on the case it was“not a feasible option.” I note that the appellant rejects ABP’s claim that it cannot request any personal records on the case held by these individuals – and that it is“fully responsible for the documents, processes, procedures and the processing of same by board members and inspectors. I did not request any ‘personal records’. Any work that inspectors or board members carried out during their tenure at ABP is an ABP record for which ABP are responsible.”
22. I appreciate the point the appellant makes here – but I do consider the email inboxes, or personal records of these individuals, to be relevant places for a public authority to search when responding to information requests such as this under the AIE regime. Unfortunately, due to the time that has passed, the Inspector in question no longer works for ABP and due to the length of time that has passed since the Report was finalised I do not think it is unreasonable that ABP are unable to access their emails and storage records from this time.
23. The appellant has provided evidence as to why she thinks earlier versions of the Inspectors’ report may exist. She has quoted an article from theIrish Examiner from 2022 which referred to reports in two media outlets of“cases where inspectors’ reports were changed but the concerns expressed at the industrial relations meeting indicates that not just changes but recommendations are also being requested. The concerns also suggest that the practice is more widespread than has already been exposed.”
24. From what I understand, the reports referenced in this article, and brought to my attention by the appellant, feed into a wider concerns regarding the governance and procedures at the planning board, that is beyond the remit of this Office. The sole question before me in this appeal is whether ABP fulfilled its obligations under the AIE Regulations in relation to this particular AIE request. My Investigator did however put the appellant’s comments to ABP who responded with the following:“The claims referenced in the appellant’s submission appear to relate to broader concerns raised in media reports about changes to finalised reports and recommendations at Board level. ABP cannot comment on the specifics of unrelated cases, we reiterate that such matters, if they arise, are documented in the Board’s official records and decision-making processes. These practices are distinct from the Inspectors report preparation process and do not pertain to the appellant’s request.”
25. On balance, and considering the length of time that has passed since the decision on this case was made, I am satisfied that ABP has taken sufficient steps to ascertain that no draft iteration of the Inspectors’ report or request for changes to the same, is held by or for ABP. I find ABP’s explanation is reasonable in the circumstances.
Section 2 of the appellant’s AIE request
26. Section 2 of the appellant’s request involves:
“2. A description of the process used by ABP to incorporate information submitted during oral hearings into the final Inspector's report.
e.g. much information including concerns was provided verbally. As no transcripts are available, what process/procedure was used to capture the issues raised, analyse these and incorporate them into the final report? Likewise, written information was also provided at the oral hearing.”
27. Section 2 of the appellant’s request is general in nature – it refers to the process used by ABP to incorporate information submitted during oral hearings into the final Inspector’s report.
28. While sometimes it may be appropriate and useful for a public authority to provide background information or context when responding to a request, the AIE regime does not create a mechanism whereby narrative responses are provided by public authorities to specific requests for information from requesters. ABP has approached this as an AIE request (as well as attempting to answer the appellant’s query), and has set out the steps it took to search for information relevant to this part of the request – which it has identified as“a copy of the oral hearing records for case VA00015.”
29. In response to Section 2 of the appellant’s request, ABP directed the appellant to its website which has a section titled“what happens after an oral hearing” . It gave further details around oral hearings generally“An oral hearing is a public meeting of a case before An Bord Pleanála where the parties to the appeal discuss verbally the merits of the case and the public can attend this hearing. The purpose of an oral hearing is to allow further discussion and examination of relevant issues on the proposed development by the parties to the case before the inspector. It is not intended to be overly formal or legalistic. The Board of An Bord Pleanála has the power to decide whether or not to hold an oral hearing in any case and may decide whether or not to have a recording of the hearing.
30. ABP explained, in submission to this Office, the steps it took to locate the oral hearing record for case VA00015. It stated the oral hearing for this case was held on the 4th, 5th, 6th, 7th, 14th and 15th of November 2013. ABP said that a number of internal teams were contacted including the Public Access team, Strategic Infrastructure Development and ICT sections to conduct a search for this recording. ABP provided the following information regarding its searches of the recording:“the following locations were searched: Public Access Team: Personnel responsible for managing public queries and access to records on decided cases were contacted. As this file was several years old, they checked through serval folders maintained on An Bord Pleanála’s systems where these records are stored by file name. Unfortunately, they were unable to locate this recording. The file itself was also retrieved from our off-storage archive facility and searched. No record of the recording was located on it.”
31. Considering the length of time that has passed since the oral hearing, I do not consider it unreasonable that ABP has not been able to locate a copy of the recording. Our Investigator asked for a more detailed explanation from ABP on the searches it described, to satisfy this Office that the appropriate steps were taken to identify any records of relevance. It responded that with regards the ICT Section searches - that the ICT team responded that oral hearing recordings of this type are kept in a folder in an internal drive called the “J drive”, or they can be on an external hard-drive. The ICT team confirmed that both were searched and that no relevant recording was found.
32. ABP says that as this was a Strategic Infrastructure Development (SID) case, therefore the SID team were contacted. This team conducted a search of their own records and were unable to locate the Oral Hearing recording. ABP confirmed that the terms used across searches included the case name and number. Despite thorough searches using these terms and parameters, no records were located. ABP also confirmed it is unlikely that the recording would be placed under the wrong file number however. It also confirmed that it contacted the external audio company (Artane Audio) responsible for the recording of the 2013 oral hearing. The company was requested to search their records and were provided with the date of the hearing as well as the case number. The recording company came back and stated they were unable to locate the requested recording. Due to the length of time since the oral hearing took place, I do not consider it unreasonable that no records have been located by either ABP or the external audio company.
33. The appellant stated in submission to us that“It is appalling to hear that ABP do not even have a copy of the oral hearing. Further information was submitted as part of that oral hearing, such that the original planning permission also required adherence to information submitted to the oral hearing. I think that was condition 1 of the original permission… This admission by ABP means that these amendments to the planning permission by ABP are in breach of their own conditions if they do not have the documentation and recordings to prove they know what was submitted to the oral hearing.”
34. While I understand the frustration caused to the appellant by virtue of the fact ABP have been unable to locate a copy of the oral hearing recording, I must reiterate at this point the role of the Commissioner – what powers I do and do not have. Under article 12(5) of the AIE Directive my role is to a) review the decision of the public authority, (b) affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and (c) where appropriate, require the public authority to make available environmental information to the applicant, in accordance with these Regulations. I have no role in commenting on ABP’s processes more generally or determining whether it is in“breach of its own conditions if they do not have the documentation and recordings to prove they know what was submitted to the oral hearing.”
35. I note the appellant’s comments that“this is not a historic project.” She has also directed us to various newspaper articles that give updates on more recent developments on the Laois-Kilkenny Grid reinforcement project, and controversies that have affected the project. Any investigation of the potential breach of planning conditions is not the remit of the Commissioner. I note the appellant has also referred to amendments to the project planning permission in Bord Pleanala Case reference VM11.320832. However, that case relates to a“Section 146B application for amendments to An Bord Pleanála Case Reference PL11.VA0015 “LaoisKilkenny Reinforcement Project, 400kV/110kV Gas Insulated Substation” – which I consider to be beyond the remit of the information requested by the appellant in this appeal. If the appellant would like to make a separate request for information in relation to VM11.320832, or in relation to any other matter, she is welcome to do so.
36. I can however assure the appellant that I have read carefully through her submissions, in with a particular focus on anything that would make me casts doubt on ABP’s efforts to identify whether the requested environmental information is held by it. While I understand it will come as a disappointment to the appellant, I am persuaded based on the evidence before me that ABP have taken sufficient steps to determine that it does not hold a copy of the oral hearing for ABP case reference VA0015, or draft versions of the Inspector’s reports/requests for amendments to that Inspector’s report.
37. Having carried out a review under article 12(5) of the AIE Regulations, I affirm An Bord Pleanala’s decision.
38. 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