Decision
Mr Eoin Brady and Offaly County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140558-J8V1H9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140558-J8V1H9
Published on
Whether the Council were justified in refusing access to this information sought, and whether appellant’s request was dealt with in accordance with articles 7(4) and 11(4) of the AIE Regulations
4 March 2024
1. On 9 May 2023 the appellant contacted the Council and requested that it provide “all information, records and correspondence (internal and external) of whatever media related to the Works” in relation to tree removal and woodland clearance within the riparian Zone of the River Brosna located at the embankments of the river just off the R357 at Hunston, County Offaly.
2. Having received no response, the appellant sent a follow up email to the Council on 8 June 2023, outlining that a deemed refusal would arise after this day.
3. The Council issued its original decision on 15 June 2023, highlighting that due to staff resource issues it was not possible to process the appellant’s AIE request within the
allowed timeframes. The Council commented that an investigation was ongoing in relation to this issue and that there were no further records available. The Council made no reference to any provision of the AIE Regulations.
4. The appellant sent a letter to the Council on 1 July 2023 outlining that if they did not hear from the Council by 7 July 2023 that the matter would be appealed to OCEI. In response, the Council indicated that it had responded to the AIE request on 15 June 2023 and attached copy of same. The appellant noted his position that the Council’s response was in effect a refusal of the request as no information was disclosed. He requested confirmation that Offaly County Council were refusing the request and that he was to take the response of 15th June as a deemed Internal Review decision.
5. Despite additional email correspondence sent by the appellant, no further response issued from the Council and the appellant submitted his appeal to this Office on 15 July 2023.
6. Following receipt of the appellant’s appeal in this Office, the Council’s internal review decision issued to the appellant on 18 July 2023, setting out the following:
“This AIE Request relates to an alleged Unauthorised Development and as such no records other than any Warning Letters issued under Section 152 of the Planning and Development Act 2000, as amended, can be released under this request. Offaly County Council wishes to advise that this is an on-going investigation into an alleged Unauthorised Development. Offaly County Council have reached no decision on the investigation and no warning letters have issued.”
7. Despite multiple requests from this Office for the Council to provide subject records or confirm that no subject records existed relating to this appeal, no response was received to these queries.
8. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to any submissions made. 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’).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. 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. My jurisdiction arises where a public authority has refused a request, in whole or in part. A request which has been “refused” includes a request that has not been dealt with in accordance with articles 3, 4 or 5 of the AIE Directive (see article 11(1) and 11(5)(c) of the AIE Regulations). Article 4(5) of the AIE Directive, implemented by articles 7(4)(c) and 11(4)(a) of the AIE Regulations, requires the public authority to provide reasons for a refusal to make information available.
10. The Council’s decisions in this case are confusing and contradictory for a number of reasons;
i. The Council’s original decision made reference to granting the request while also not disclosing any information. It also outlined that no “further” records are available even though no records were provided.
ii. Neither of the Council’s original or internal review decisions referenced any grounds for refusal under the AIE regulations or outlined any adequate reasoning to the appellant.
11. Based on the above, the scope of this review concerns whether the appellant’s request was dealt with in accordance with articles 7(4) and 11(4) of the AIE Regulations.
12. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations.
13. Articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. Recital 16 of the AIE Directive states “…The reasons for refusal should be provided to the applicant within the time limit laid down in this Directive.” Article 4(5) of the AIE Directive provides that “[a] refusal to make available all or part of the information requested shall be notified to the applicant…The notification shall state the reasons for the refusal…”.
14. I do not consider the Council’s responses to be in accordance with the duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, but is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed.
15. As such, the manner in which the Council has dealt with this request is not in compliance with its obligations under the AIE Regulations. The absence of any evidence to show that the Council meaningfully engaged with the request at either original decision stage, or at internal review stage is most disappointing. The Council did not make reference to any provision of the AIE Regulations in its decision making process, provided minimal detail to this Office in support of its position, and further, it did not respond to requests for any existing records by this Office.
16. The Council also issued its original and internal review decision outside of the timeline set out in the AIE Regulations. My jurisdiction under article 12(3)(a) of the AIE Regulations to review a ‘refusal’ includes review on the basis that a request has been inadequately answered or has otherwise not been dealt with in accordance with Article 3, 4 and 5 of the AIE Directive. Article 3(2) and (3) of the AIE Directive deals with the timelines for a decision on a request and the approach that must be taken by a public authority where a request is formulated in too general a manner. Those provisions are implemented by article 7(2) and (8) of the AIE Regulations.
17. The Council’s original decision stated that due to staff resources it was not possible to process the request within the allowed timeframes. I would remind public authorities that obligations under the AIE Regulations are an important statutory obligation, and therefore it is necessary to ensure that adequate resources are made available for the processing of request. It is only in situations where a public authority is unable to process a request in time due to the volume or complexity of the environmental information requested that a public authority can extend the time for providing a response to the request as set out in article 7(2)(b) of the AIE Regulations.
18. The Council’s submission to this Office in this case outlined that following discussion with Planning colleagues, that the Council’s position is that as the AIE Request relates to an alleged unauthorised development, “no records other than any Warning Letters issued under Section 152 of the Planning and Development Act 2000, as amended, can be released under [this] request”. The Council further submitted that the Council had not reached a decision on the investigation and no warning letters had issued.
19. While the Council made no reference to any provision of the AIE Regulations in respect of the appellant’s request, in referencing that an “ongoing investigation” was taking place, the Council alluded to referencing information that could be grounds for refusal under article 9(1)(b) of the AIE Regulations. Article 9(1)(b) allows for a public authority to refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice.
20. The AIE Regulations do not allow for the blanket refusal of information relating to an alleged unauthorised development or an ongoing investigation. A public authority must consider each record individually. The wording of the article makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that the disclosure of the information at issue could specifically and actually undermine the course of justice as set out by the CJEU at paragraph 69 of Land Baden-Wurttemberg v DR, Case C-619/19. The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical. Further, if refusing release of records on the basis of article 9(1)(b), public authorities must also have consideration to the provision of articles 10(3) and 10(4) of the AIE Regulations concerning the public interest balancing test. There is also a requirement in article 10(5) of the AIE Regulations which provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information. The practical implication of this provision is that the public authority must consider whether any relevant records could be partially released to the appellant.
21. Nonetheless, the Council did not engage with the AIE Regulations and failed to provide adequate reasoning and justifications of the information refused.
Conclusion
22. The manner in which this request was handled and the failure of the Council to provide any information or any adequate reasons to the appellant meant that the appellant had no opportunity to make a meaningful request for internal review, and could not make a detailed appeal to this Office. This Office has a significant backlog of appeals and it will be impossible to clear the backlog if public authorities do not issue comprehensive and lawful first instance decisions that respect the fundamental rights of applicants. My options under the AIE Regulations are limited and it is not tenable for this Office to review in substance all environmental information where public authorities do not make lawful and sufficiently reasoned first instance decisions.
23. I have taken into account that the Council’s internal review position outlined that ‘Warning Letters issued under Section 152 of the Planning and Development Act 2000, as amended’, could be released under this request, and also the Council’s position that no decision has been reached on the investigation and no warning letters have issued. However, regardless of the Council’s position, it still failed to justify its refusal of the appellant’s request by any reference to the AIE Regulations, nor did it provide any evidence or confirmation to this Office concerning whether or not any relevant information exists despite multiple requests to do so.
24. In light of the above, I cannot find that the Council dealt with the appellant’s request in accordance with articles 7(4) and 11(4) and I will annul the internal review decision of the Council. Further, in light of the lack of clarity regarding what information may fall to be considered for release, I do not believe that it is appropriate for this Office to direct release of information in this instance.
25. I acknowledge that this will come as a disappointment to the appellant. If I was to now attempt to make further efforts to ascertain what information is held by the Council that is relevant to this request and obtain copies of that information to be reviewed, this could potentially take a significant amount of time and resources and would further delay the appellant receiving a response to this appeal. Having considered all relevant factors, I am satisfied that the most appropriate outcome to this appeal at this time is for the Council to issue the appellant with a new internal review decision under article 11 of the AIE Regulations.
26. Article 12(3) of the AIE Regulations allows for a decision made by a public authority under article 11 of the AIE Regulations to be appealed to my Office. Article 12(5) of the AIE Regulations provides that I may review the decision of the public body and affirm, vary or annul the decision concerned, specifying the reasons for my decision. I therefore consider that where I annul a decision of a public authority, this only has the effect of annulling the internal review decision, not the original decision.
27. Should the Council wish to rely on article 9(1)(b) in processing a new decision, it will be for the Council to establish that there is a reasonably foreseeable adverse risk to the course of justice were the information at issue to be released, while also having consideration to article 10 of the AIE Regulations. If the appellant is dissatisfied with this new decision, he can appeal again to my Office. If the Council does not provide adequate reasons for its decision, I may have to consider simply directing release of the information sought.
28. I would also encourage the Council to take steps to engage more fully with the AIE Regulations and with this Office in the future. This also includes having regard to the timelines set out in article 7 of the AIE Regulations.
29. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the internal review decision of the Council. The result of this decision is that a new internal review process should be carried out by the Council under article 11 of the AIE Regulations.
30. 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