Cinneadh
Ms X and Laois County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-114200-V4W8X8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-114200-V4W8X8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access to further relevant information relating to parts 1, 2, 3, and 4 of the appellant’s request under article 7(5) of the AIE Regulations.
9 May 2025
1. On 18 May 2021, the appellant submitted a request to the Council, seeking access to:
“…environmental information relating to quarrying/excavations of an esker and surrounding lands at Clonaslee, County Laois. A general site location plan is showing at Annex 1. The application includes lands, which were the subject of High Court Reference 2016 No. 352 MCA and are presently the subject of an Appeal before the Court of Appeal Reference 2018 220. I make the following request.
(i) A copy of the minutes (which must confirm all attendees for and on behalf of LCC and all others in attendance too) and all records pertaining to the meeting that took place in County Hall on the 13th of July 2015 between Laois County Council Staff, Sean Wisely and Councilor Seamus McDonald PC – an extract showing confirmation of said meeting is shown at Annex 2.
(ii) Confirmation as to what capacity Councilor Seamus McDonald PC attended said meeting was it in his personal capacity, a member of LCC or otherwise.
(iii) Copies of any plans, particulars and material used to “discuss the options.”
(iv) Confirmation as to what exactly [i.e., the substance matter] the “options” were.”
2. On 15 June 2021, the Council applied an extension under article 7(2)(b) of the AIE Regulations.
3. On 13 July 2021, the Council issued its decision, wherein it stated that it was refusing the appellant’s request.
(i) Regarding Part 1 of the appellant’s request, the Council stated that it had identified one relevant record (Record 1), a diary note of the meeting held on 13 July 2015, which it was withholding under articles 9(1)(b) and 8(a)(i) of the AIE Regulations. The Council also stated that it was refusing access to further information relevant to Part 1 under article 7(5) of the AIE Regulations on the basis that the Planning Department advised that no minutes of the meeting are held.
(ii) Regarding Part 2 of the appellant’s request, the Council stated that it was refusing access under article 7(5) of the AIE Regulations on the basis that no relevant information is held in the Planning Department.
(iii) Regarding Part 3 of the appellant’s request, the Council stated that it was refusing access under article 7(5) of the AIE Regulations on the basis that no relevant information is held in the Planning Department.
(iv) Regarding Part 4 of the appellant’s request, the Council stated that information in Record 1 was also relevant to this part of the request and referred to article 8(a)(i) of the AIE Regulations.
4. On 13 August 2021, the appellant sought an internal review of the Council’s decision. In doing so, the appellant contended that adequate searches in respect of the entirety of her request had not been carried out. She also made further submissions regarding the specific parts of her request, which are summarised below:
(i) Regarding Part 1, she disputed the Council’s reliance on article 9(1)(b) of the AIE Regulations.
(ii) Regarding Part 2, she disputed the Council’s reliance on article 7(5) of the AIE Regulations.
(iii) Regarding Part 3, she disputed the Council’s reliance on article 7(5) of the AIE Regulations.
(iv) Regarding Part 4, she disputed the Council’s reliance on article 8(a)(i) of the AIE Regulations.
5. On 8 September 2021, the Council issued its internal review decision, wherein it affirmed its original decision. The Council outlined its view that adequate searches had been carried out.
(i) Regarding Part 1, the Council affirmed its refusal of Record 1 under articles 8(a)(i) and 9(1)(b) of the AIE Regulations.
(ii) Regarding Part 2, the Council affirmed its refusal under article 7(5) of the AIE Regulations.
(iii) Regarding Part 3, the Council affirmed its refusal under article 7(5) of the AIE Regulations.
(iv) Regarding Part 4, the Council affirmed its refusal of Record 1 under articles 8(a)(i) and 9(1)(b) of the AIE Regulations (in submissions to this Office.
6. On 8 October 2021, the appellant submitted an appeal to this Office.
7. The Council, in initial correspondence to this Office 18 January 2022 indicated that it was no longer relying on article 9(1)(b) of the AIE Regulations to refuse access to Record 1, however it was relying on article 8(a)(iv) of the AIE Regulations and stated that some of the information contained therein fell outside the scope of the appellant’s request.
8. The Commissioner for Environmental Information has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court in another appeal(Coillte Teoranta and People Over Wind) , seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the Freedom of Information Act 2014. As this appeal raised identical legal issues in relation to article 8(a)(iv) of the AIE Regulations, it was not possible to progress this case until the Court provided its legal guidance. As such, this appeal was placed on holding pending the receipt of the Court’s decision. The High Court issued its judgment on 28 April 2023 and it is available at [2023 IEHC 227 ]. This appeal was subsequently reactivated.
9. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Council and the appellant, as outlined above, and to correspondence between this Office and both the Council and the appellant. I have also examined the content of the record at issue. 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
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. 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 the public authority to make available environmental information to the appellant.
12. As noted above, the Council, in submissions to this Office dated 18 January 2022 stated that it was refusing access to certain information contained within Record 1 on the basis that it falls outside the scope of the appellant’s request. Having examined Record 1, I am satisfied that some of the information contained therein does indeed fall outside the scope of the appellant’s request; namely the top half of the page (i.e. all of the information above the paragraph of text describing the meeting) and the text at the very bottom of the page that relates to a different matter). The remainder of the information in the record falls within the scope of the appellant’s request.
13. During the course of this review, the Council informed this Office that it was agreeable to releasing the information in Record 1 that falls within the scope of the appellant’s request. Therefore, I no longer consider Record 1 to be at issue in this appeal. I expect the Council to release Record 1 to the appellant, subject to the redaction of the information identified above that falls outside the scope of the appellant’s request.
14. In the circumstances, I am satisfied that the scope of this appeal concerns whether the Council was justified in refusing access to further relevant information relating to Parts 1, 2, 3, and 4 of the appellant’s request under article 7(5) of the AIE Regulation.
15. 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. In cases where a public authority has effectively refused a request under article 7(5), this Office 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.
16. In its original decision the Council identified steps taken by the planning department to locate relevant information. In her internal review request, the appellant stated “The extent of your searches is noted, but for completeness I do not accept that adequate searches are done. In my view searches and enquiries should be made with all relevant Council Departments for all information requested including for example finance, property management, legal department, the Chief Executive’s office etc. It appears to me that adequate searches have not been conducted. The internal reviewer should ensure that full searches are carried out covering all categories of information and in all areas of the Council.” In its internal review decision, the Council confirmed that the Planning Department was the relevant Department for the request and that it was “satisfied that no other Departments in the Council would hold records relevant to this request”. In its submissions to this Office, the Council reiterated this position, noting that the Senior Executive Planner was the relevant individual consulted, as he was the only Council staff member who attended the meeting. Given the wording of the appellant’s request and the information sought, I have no reason to doubt the Council’s explanation in this regard.
17. In its submissions to this Office, in addition to the details in the original and internal review decisions, the Council also included the following in support of its reliance on article 7(5) of the AIE Regulations:
• The Council stated that no records were destroyed in relation to this matter.
• The Council stated that the Senior Executive Planner was the only person who met with the individuals concerned on 13 July 2015. The Council stated that the Senior Executive Planner confirmed this. The Council stated that it is his diary note that is Record 1.
• In relation to Part 1 of the request, the Council stated that the Senior Executive Planner confirmed that he did not retain any minutes from the meeting other than the diary note.
• In relation to Part 2 of the request, the Council stated that the Senior Executive Planner did not confirm, establish or clarify with Seamus McDonald at the time of the meeting in what capacity he was attending the meeting.
• In relation to Part 3 of the request, the Council stated that the Senior Executive Planner confirmed that there were no plans, particulars and materials used to discuss the options at the meeting. The Council noted that the diary note states that the Senior Executive Planner verbally “advised of options available – i.e. retention, comply with any enforcement notice or legal proceedings.”
• In relation to Part 4 of the request, the Council stated that the options discussed are those contained within the diary note.
18. The general thrust of the Council’s position is that it holds no further relevant environmental information. I wish to emphasise that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. My role concerns reviewing appeals of requests for access to environmental information, which is held by or for the relevant public authority and no more than that.
19. Having considered the explanations provided by the Council, I am satisfied that the Council has taken adequate steps to identify and locate all relevant environmental information held by it in this particular case. Accordingly, I find that article 7(5) of the AIE Regulations applies.
20. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the Council’s decision to refuse access to further information relating to parts 1, 2, 3, and 4 of the appellant’s request under article 7(5) of the AIE Regulations. I also expect the Council to release Record 1 to the appellant, subject to the redaction of the information that falls outside the scope of the appellant’s request.
21. 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