Decision
Mr. John Colgan and Kildare County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/08/0006
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/08/0006
Published on
Case CEI/08/0006
European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)
Appellant: Mr. John Colgan
Public Authority: Kildare County Council (the Council)
Whether the Council was justified in its refusal of access to environmental information concerning the installation of a sewer across the River Liffey at Leixlip
The Commissioner found that the Council was not justified in its original decision to refuse the request on the basis that it did not hold any environmental information within the scope of the request.
She found that section 7(5) of the Regulations allowed the Council to refuse a request in relation to further records (other than those made available in the course of the review) on the basis that the information requested is not held by or for it. She found that for the purposes of this particular request and appeal, the contractors engaged in the project at issue were not ''public authorities'' within the meaning of the Directive and the Regulations.
In relation to the small number of outstanding items of information, she found that the Council's decision to refuse access under Article 8(a)(iv) and Article 9(1)(c) of the Regulations on grounds that disclosure would adversely affect confidentiality was not justified in the circumstances of this case and she directed the release of that information insofar as it lay within the scope of the request.
On 21 January 2008, the Applicant made a request for environmental information to the Council under the Regulations, seeking "a copy of the "paper trail" of this project"- the project being "the installation of a sewer from and for the Salmon Leap Inn, Cooldrinagh, Co. Dublin, across the Liffey (aka Salmon Leap) Bridge...., and thence connecting to a main sewer the property of your Council at Main St or Mill Lane Leixlip".
In its decision of 19 February 2008, the Council refused the request stating that the installation of the sewer was a private agreement about which the Council held no information. The Applicant, on 17 March 2008, sought an internal review of the Council's decision. When there was no reply within the required timeframe of one month, he appealed to my Office on 29 April 2009. The appeal was accepted and the Council was asked to review the matter and indicate its position. The Council released to the Applicant on or about 30 June 2008 a number of records identified as relevant to the request.
When the appeal was accepted, my Office sought information from the Council to enable it to proceed with the review. Despite reminders, the request to the Council was not responded to in an adequate manner and it was necessary on 20 October 2008 to issue a letter to the County Manager under Article 12(6) of the Regulations formally requiring the provision of the information. In response, the Council indicated that all the information in its possession relating to the Leixlip Bridge project would be made available to the Applicant although, in its view, the material relating specifically to the sewer was limited. The Council's view was that this access be by way of inspection given the large volume of material relating to the overall project for the refurbishment of Leixlip Bridge. The Council suggested that there were approximately 53 files. After further communication between my Office and the applicant, the Applicant agreed to inspect the files and did so in January 2009. The Council asked two contractors who had worked on the project to provide any relevant information held.
In the information identified as relating to the overall project, there were a few items which the Council considered exempt from release under the Regulations.
I have taken account of the submissions of the Applicant (written and oral) and the Council and of 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.
My Investigator, Ms Brenda Lynch, sent her preliminary views to the parties in May 2009. A detailed response was submitted by the applicant in late July 2009; no response was received from the Council. I have decided to bring this appeal to a conclusion by way of a formal binding decision. I wish to point out that this was a particularly protracted review, due in part to the inadequate responses of the Council in the early stages and the comprehensive input of the applicant. Despite this, I think it important to point out that, following the intervention of my Office, the applicant obtained access to a large volume of information, including much that was outside the scope of his original request.
This review is concerned solely with whether the Council's decision was justified under the Regulations. The Regulations set out the circumstances in which an appeal may be made to the Commissioner. Under Article 12(3), an appeal may be made against a decision of a public authority under Article 11 i.e. against an internal review decision. In turn, a request for an internal review under Article 11 must relate to a request which has been refused under Article 7 which provides for the action to be taken on a request for environmental information. Article 12(4)(a)(ii) provides for an appeal to be made to the Commissioner when no decision has issued from the public authority in the required timeframe, as happened in this case. It is important that in exercising my role, I do not to exceed my jurisdiction and, for this reason, establishing the scope of a review is vital.
The following points are relevant regarding the scope of this review:
I wish to emphasise that it is outside my remit as Commissioner for Environmental Information 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 by public authorities.
Before I examine the exceptions cited in relation to the withheld records, I wish to make some observations on the circumstances of this appeal.
I find it difficult to see how the Council in response to the original request could take the position that it held no environmental information relevant to the request. The definition of "environmental information" set out in Article 3(1) of the Regulations is extensive.
Environmental information"means any information in written, visual, aural, electronic or any other material form on -
(a) the state of the elements of the environment, such as air and atmosphere,water, soil, land, landscape and natural sites including wetlands,coastal and marine areas, biological diversity and its components,
including genetically modified organisms and the interactionamong these elements...
(f) the state of human health and safety, including the contamination ofthe food chain, where relevant, conditions of human life, cultural sitesand built structures inasmuch as they are, or may be, affected by thestate of the elements of the environment referred to in paragraph
(a) or, through those elements, by any of the matters referred to inparagraphs (b) and (c);
I am satisfied that information relating to the installation of the sewer at the bridge is "environmental information". In view of the information subsequently identified as relevant to the request, it is fair to say that the Council should have dealt with the original request in a proper manner. Following intervention by my Office, the Council decided to make available all information in its possession relating to the Salmon Leap Bridge project, with some limited exceptions. While this approach on the part of the Council was helpful in progressing matters, it also meant that there was a considerable volume of information to be examined and that not all the information made available for inspection (53 files) was strictly within the scope of the request. It is important that public authorities in dealing with requests for environmental information are mindful of the need to be of assistance to requesters.
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 informthe applicant as soon as possible that the information is not held by or for it".
Article 8(a)(iv) provides:
"A public authority shall not make available environmental information inaccordance with article 7 where disclosure of the information—
(a) would adversely affect—
(iv) without prejudice to paragraph (b), the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts);"
Article 9(1)(c) provides:
"A public authority may refuse to make available environmental information where disclosure of the information requested would adverselyaffect—...;"
(c) commercial or industrial confidentiality, where such confidentiality isprovided for in national or Community law to protect a legitimateeconomic interest ;"
The Applicant contends that the Council should and does hold further records. Article 7(5) of the Regulations provides grounds on which a public authority may refuse access to a request. Article 3 of the Directive requires public authorities to make available environmental information held by or for them. Paragraph 1(a) of Article 4 of the Directive allows for the provision by Member States for a refusal of a request where the information is not held for or by the public authority to which the request is addressed. It goes on to provide that where that public authority is aware that the information is held by or for another public authority, it shall transfer the request. This indicates to me 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.
I note that the Directive has its origins in the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). "The Aarhus Convention: an Implementation Guide" [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. As Commissioner for Environmental Information, 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, I consider that my role is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public authority in looking for relevant records. On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the information is not held for or by the public authority. It is not normally the my function to search for records.
The Information Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA).
I consider that I am primarily concerned with ensuring public access to extant records in accordance with the provisions of the Regulations and the Directive. The Regulations do not provide for a right of access to records which ought to exist. Therefore, I do not have the authority to require a public authority to create records where such information does not already exist or is not held by or for it.
In relation to the interpretation of Article 7(5) of the Regulations, I think that it is reasonable for me as Commissioner for Environmental Information to take a similar approach to that developed and approved by the High Court under FOI.
The Applicant identified records which he believes exist. He referred to reports sought, photos which were to be taken, instances when he had seen people working for or on behalf of the Council taking photos and his belief that pages had been torn from a diary. I am aware that the Applicant pursued these points with the Council also. Despite the fact that additional records were identified following enquiries made by my Office, I have not established that the Council has knowingly concealed environmental information held. I think it reasonable to now conclude on the balance of probabilities that adequate searches have been carried out by the Council in the course of my review and that the officials with which my Office has had contact acted in good faith and have not given misleading information.
While the Applicant is clearly of the view that further records should exist, this does not necessarily mean that such records are actually held. As set out above, I do not consider it feasible for me to continue to pursue the possibility that additional records might exist or to physically search the Council's offices. This is especially so when it is by no means certain that all of the information which the Applicant has identified as missing would necessarily be environmental information within the scope of the request. It is necessary to bring this case to a conclusion and to have regard to the reasonable use of my Office's resources.
The Council engaged two contractors for the work on the Salmon Leap Bridge. There would have been communications between the Council and its contractors as well as information created and held by the contractors in the course of undertaking the overall project. It is reasonable to assume that those aspects of the bridge works comprising the installation and "after effects'' of the private drain /sewer which concerned the Council would have been communicated by the contractors to it as necessary. Whether those communications were recorded or not is difficult to establish but I do not have a basis for finding that the Council deliberately withheld copies of any relevant information in its possession.
My Office drew the Council's attention to the definition of environmental information in the Regulations i.e. environmental information held by or for a public authority. The Council wrote to both contractors advising them of the request and the context of the Regulations and seeking their assistance and cooperation in responding. In its response to my Office, the Council indicated that the information held by the contractors on the project as a whole amounted to 30 files. The consulting engineers, (MPP), asserted strongly that the only information they possessed in relation to the sewer was connected with the remedial phase and that all of this information had been copied to the Council. The other contractor (W&B) indicated that they had passed on the relevant information to the Council. The applicant is adamant that this is not so and refers to a replacement design for the drain.
The Applicant made certain allegations about how the Council went about obtaining records from the contractors and the roles of staff of the Council in this regard. I do not consider that it is appropriate for me to comment in any detail on these. I have no evidence that the Council deliberately suppressed or withheld relevant material or assisted others to do so.
I realise that the Applicant wishes me to take action to secure the release of information which he believes is in the possession or the control of the Council and its contractors. I do not believe that this is a case where I should invoke my powers under article 12(6) of the Regulations. The Regulations generally put the onus of complying with the access to environmental information regime on public authorities rather than on those with whom they have contracts. I note that the Council made several efforts to obtain information from both contractors and that the contractors responded. I have outlined above my role in relation to "search" cases. In my view, the Council has taken reasonable steps to obtain any environmental information held by the contractors in the context of this case in which much of the information held covers the project as a whole rather than the specific items with which the applicant is concerned. It could not have been envisaged by the Regulations or the Directive that all records of a private contractor hired by a public authority would constitute environmental information over which the public authority has control. For example, financial, staffing and other company records related to the project but not required by the public authority to carry out any of its functions re tendering, costings or payments would normally remain under the company's control. While there are clearly some areas of private companies' roles over which the Council has a function when public works are being implemented, I am not at all sure that the Council is empowered to obtain from its contractors such items as copies of diaries, photographs or other staff documents produced for the company in the course of works.
The Applicant has argued that the contractors are public authorities on the basis of the definition provided in the Regulations and the Directive.
""public authority" means, subject to sub-article (2)—"
(a) government or other public administration, including public advisorybodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functionsunder national law, including specific duties, activities or services inrelation to the environment, and
(c) any natural or legal person having public responsibilities or functions,or providing public services, relating to the environment under thecontrol 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;
I understand that both companies were operating under a contract for services to the Council following a procurement process in relation to the works. In my opinion, neither meet the definition of public authority at (a) or (b). In considering whether they might fall to be a "public authority" under (c), I must determine whether they have public responsibilities or functions or provide public services. I accept that both contractors, as limited companies, are legal persons. I do not consider that the contractual relationship between the contractors and the Council is such that the contractors could be said to have public responsibilities or functions or to be providing public services. Both companies have been engaged in a wide range of projects for both public and private entities. While they had a contractual relationship with the Council, I do not consider that either company could be said to exist for the purpose and, in the context of the sewer issue, to have as its main activity the provision of public services relating to the environment.
My Investigator drew the Applicant's attention to a decision of the UK Information Commissioner -[Ref: FER0152607 - Belfast Improved Housing Association - of 8 October 2008 on www.ico.gov.uk] in this regard. In that case, there was a clear responsibility on the association, which was in receipt of public funds, to carry out public administration functions. In addition, it was held that the association was under the control of a government department. An earlier UK Commissioner's decision [FER 0090259- Environmental Resources Management Ltd)] dealt with a private company. However, in the latter case, the control was both statutory and contractual in that the company was carrying out an environmental assessment function on behalf of the responsible authority. It was held to have assumed public functions in carrying out an environmental assessment which the regional assembly for the North East of England was obliged to have done. In the current case, I accept, of course, that the Council has "control" over any environmental information held for it by the contractors in relation to the sewer works. This is evidenced by the fact that the Council requested and obtained copies of records held by the contractors but is not the same as finding that the companies concerned are public authorities.
In his submissions, the Applicant referred to the amount of time he spent examining the files made available by the Council and the costs involved. While I accept that the Applicant has invested considerable personal time in the pursuit of his request, I consider it reasonable on the part of the Council to make the information sought available in this format as allowed under Article 7(3) of the Regulations given the considerable volume of material and the fact that it is not always possible to separate out from the totality of the documentation material within the scope of the request.
The Council identified some information which it considered exempt from release under the Regulations. Some of this was created after the request and is therefore outside the scope of my review. Some relates to legal agreements with landowners to facilitate works on the Salmon Leap Bridge and I do not consider those elements to be within the scope of the request either. The applicant has indicated that he accepts the first point regarding information post dating his request. In relation to the legal agreements, the Applicant says that he would wish to see any legal agreements relating to the Salmon Leap Inn. I am satisfied that none of the agreements relate to this property. Even of any of these did relate to it, I am not certain that they would fall within the scope of the review. There is no need for me to consider such information further.
The remaining information to which access was refused comprises financial and other information connected to the bridge project. I am satisfied that information which significantly predates the installation of the sewer in early May 2006 or which does not make any clear reference to the sewer or related works is outside the scope of the review. In my view, only what follows remains relevant to the review:
A: Correspondence from George Willoughby, Senior Executive Engineer (GW) to MPP, dated 26/4/2007, mainly re completion of works for third party landowners;
D: 2 pages handwritten notes 16/11/2006 headed "Snag List for Leixlip Bridge", 1 page email 17/8/2006 from applicant with handwritten notes;
E: letter 30/11/2007 from GW to Senior Engineer in Council re overall cost of works, including some mention of additional works on applicant's property.
As items B and C predate any issues with the sewer, I am satisfied that they are outside the scope. In any event, B is an agreement between the Council and the Applicant from 2003 which, it is reasonable to assume he already has, and C is from the Council's insurers. Only a small portion of item A is deemed to lie within scope as most of this correspondence concerns works which appear not to relate to the sewer.
The Council claims that items A and D are exempt under Articles 8(a)(iv) and 9(1)(c), and E exempt under 8(a)(iv) only.
Article 8(a)(iv) provides for withholding information where disclosure would adversely affect the confidentiality of proceedings of public authorities where such confidence is protected by law. Article 9(1)(c) provides that access may be refused where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
I cannot see how the release of a small part of items A and all of D could adversely affect the confidentiality of proceedings of public authorities given the content, the time elapsed since these records were created and the fact that the applicant was in communication with the Council. Indeed, no specific proceedings of public bodies are at issue other than, perhaps, its dealings with landowners affected by the project. I do, however, consider that the detail in item A regarding claims by other landowners and works other than the sewer with which the applicant is concerned is not environmental information within the scope of this request and should be redacted from the copy to be released. This means that any question of breach of commercial confidentiality vis a vis third parties does not arise.
As regards item E, I cannot see how the exemption at 8(1)(iv) would apply. The contractors' website shows that they worked on the Salmon Leap Bridge Project and includes the value of the contract, so this information is already in the public domain. I can see no adverse affect resulting from its release under the Regulations and I am satisfied that no duty of confidence is owed by law. Even if this item was considered to be exempt under this provision, there would be a strong public interest in the release of information dealing with the expenditure of public monies. The Regulations, in Article 10(3), require a public authority to consider how the public interest is best served in respect of each request. As I do not consider that the exception applies, I will not deal with this in any more detail.
I find that the Council was not justified in its original decision to refuse access on the basis that it did not hold any environmental information relevant to the request. I also find that items D and E are not within the exceptions to release and should be released in full. I find that item A should be released in redacted form as follows:
A - delete all of page 1; page 2 - delete all except heading, date and addressee., page 3 - delete all; page 4 - delete all except paragraph 4 relating to applicant's property.
As regards the additional information which the Applicant contends is held by or for the Council , I find that Article 7(5) applies and I am not making any direction requiring further release.
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
15 March 2010**