Cinneadh
Mr X and Roscommon County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-131495-G3N7M2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-131495-G3N7M2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access to the information requested on the basis that the request was manifestly unreasonable
29 February 2024
1. On 23 June 2022, the appellant requested the following information from Roscommon County Council in respect of Ballinameen and Environs Waste Water Treatment Plant:
a) All records (including digital and electronic records) held by the Council in relation to the Ballinameen and environs waste water treatment plant, to include but not limited to, enforcement, monitoring, performance, complaints, incidents, events of non-compliance, correspondence to and from Irish Water and the EPA and other parties, inspections, instructions, warning notices, sampling, flow records, analysis results, submissions, annual reports and assessments.
2. On 5 July 2022, the Council wrote to the appellant. They advised the appellant that all records from 1 January 2014 to date were held by Irish Water. The Council advised the appellant that Irish Water are the sanitary authority from 1 January 2014 and owners of the asset – Ballinameen waste water treatment plant. The Council advised the appellant that the records and information predating 1 January 2014 that are held by them that relate to the Ballinameen waste water treatment plant consists of the following:
a) Records relating to the construction and maintenance of the waste water treatment plant and Roscommon County Council Laboratory monitoring data.
3. The Council advised the appellant that they were only in a position to consider release of these records. The Council also advised the appellant that due to the large volume and range of records predating 1 January 2014 associated with the construction and maintenance of the waste water treatment plant the appellants request would place an unreasonable demand on the Council’s resources. The Council invited the appellant to revise their request for any records predating 1 January 2014 to the extent that it would no longer impose an unreasonable demand on the Council resources.
4. On 18 July 2022 the appellant wrote to the Council and asked it to clarify the following points:
a) if all records and information relating to the waste water treatment plant collected by Roscommon County Council had been sent to Irish water without retaining copies,
b) whether or not his original request had been forwarded to Irish Water
c) if the Council was prepared to provide the requested information in full in respect of a single year prior to 1 January 2014.
5. On 21 July 2022 the Council responded to the appellant. It advised the appellant that it does not hold any records relating to the waste water treatment plant that post-date 31 December 2013. It stated that it holds records that pre date 1 January 2014 consisting of the following:
a) Construction and maintenance records for the waste water treatment plant;
b) Laboratory monitoring data.
6. The Council advised the appellant that it was in a position to provide the laboratory monitoring data but that it could not make a decision on the AIE request to release the data separately. The Council informed the appellant that it was obliged to deal with the whole of the AIE request and could not do so unless the appellant removed the construction and maintenance records of the water treatment plant from the AIE request.
7. The Council stated that it was not in a position to provide the appellant with the records relating to the construction and maintenance of the waste water treatment plant that pre-dated 1 January 2014 as the search, retrieval and provision of such records would place an unreasonable demand on the Council’s resources.
8. The Council also addressed the issue surrounding narrowing the scope to a specific year, indicating to the appellant that it would need to know the year in question before it could address the query.
9. The Council advised the appellant of the deadline for the revision of the request to the extent that it was no longer manifestly unreasonable having regard to the volume or range of information sought.
10. In the absence of a response to its correspondence of 21 July 2022, on 28 July 2022, the Council issued a decision to the appellant stating its view that the request was manifestly unreasonable, having considered the volume of laboratory monitoring data and the construction and maintenance records of the waste water treatment plant. The Council justified its decision by stating the examination and supply of such a large volume and range of data/records would place an unreasonable demand on the Council’s resources and subsequently cause a substantial and unreasonable interference and disruption to the work of the Council. The Council stated that the monitoring data was available on a spreadsheet and could be provided to the appellant outside of the AIE process. The Council asked the appellant to confirm if he wished to proceed with this and if so they would supply him with an electronic copy rather than a hard copy of the data and requested an email address from the appellant. The Council also offered this information in the form of a USB device.
11. On 15 August 2022, the appellant made a request for an internal review.
12. On 14 September 2022, on internal review the Council affirmed the original decision on the same grounds.
13. On 19 October 2022, the appellant submitted an appeal of the Council’s decision to this Office. In correspondence with this Office, the appellant stated that despite what it said in the refusal letter, no documentation or information was received from the Council. The appellant did not confirm if he had responded to the Council’s request for the preferred medium of receiving the information.
14. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the submissions made by Roscommon County Council. appeal. In addition, I have had regard to:
a) 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);
b) Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c) 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);
d) the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
e) the judgement of the Supreme court in National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 https://www.ocei.ie/legislation-and-resaources/court-judgements/NAMA-v-CEI-%5b2015%5d-IESC-51.pdf) (NAMA);
f) the decisions of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v Commission (Verein für Konsumenteninformation) and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg); and
g) the opinion of the Advocate General in C-217/97 Commission v Germany.
15. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
16. The scope of the review in this case is whether the Council is entitled to rely on article 9(2)(a) of the AIE Regulations to refuse the appellant’s request. In accordance with article 12(5) of the AIE Regulations, the role of this office in each appeal is to review the Council’s internal review decision and to affirm, annul or vary it.
17. Article 9(2)(a) of the AIE Regulations provides that “a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought”. It transposes article 4(1)(b) of the Directive, which provides that “Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable”.
18. In support of its position that article 9(2)[a] of the AIE Regulations provides it with grounds to refuse the request, the Council submits that the request places an unreasonable burden on it in order to comply with the appellant’s original request. It submitted that it would take a minimum of 129 hours and at least 4 staff members to complete the task. It gave a breakdown of the number of staff required to process the request. It stated that it would require staff members to search and locate the relevant files/records and one senior staff member for the verification process. This would be a total of 80 hours and three staff members. In addition, one further staff member would be required to examine, extract, create a schedule of and copy records for release.
19. The Council submitted that files and records relating to the construction and maintenance of the Ballinameen waste water treatment plant were created in the 2000’s or earlier. In response to a query from the investigator, the Council confirmed that the files and records concerned are held in hard copy and not digitized. The only files/records that maybe digitized in relation to the waste water treatment plant are those relating to the administration of the tendering process.
20. In response to a request to the necessary steps involved in identifying the relevant documents, the Council submitted that a search would have to be undertaken involving physical search of the Councils on-site and off-site archives. The Council confirmed that the files/records are now in the Council archives and held in over three different locations. The Council also confirmed that a physical search of cabinets located in the water services department and possibly other departments/business units would also be required in order to identify and locate any files that may not have been archived. A search of digital records by using key words to identify any relevant documents would also need to be conducted.
21. The question of what constitutes a “manifestly unreasonable” request must be approached teleologically, having regard to the purpose of the AIE Directive. The AIE directive makes it clear that its purpose is to ensure “increased public access to environmental information and the dissemination of such information” and that the disclosure of information should be the general rule such that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases” with grounds for refusal interpreted in a restrictive wat (see Recitals 1 and 16).
22. In addition, articles 7(2)(b) of the AIE Regulations and 3(2)(b) of the Directive envisage the processing of voluminous and complex requests and provide for the extension to the one-month timeframe within which a public authority is normally required to issue a decision on a request. It is clear therefore that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex.
23. Article 7(1) of the Directive imposes an obligation on Member States to ensure that public authorities organise environmental which is relevant to their functions, and held by or for them, with a view to its active and systematic dissemination while article 3(5) provides for a duty to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right of access to environmental information. Article 5 of the Regulations seeks to implement these provisions and provides, among other things, that public authorities must “make all reasonable efforts to maintain environmental information held by or for [them] in a manner that is readily reproducible and accessible by information or technology or by other electronic means. In his opinion in Commission v Germany, Advocate General Fennelly observed that “Article 7, which requires periodic publication of general information on the state of the environment, appears to indicate that individual requests should, in principle, be on questions of detail”. This indicate that the mere fact that a request is detailed does not mean it is necessarily unreasonable.
24. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort or would substantially interfere with the normal course of its activities. In that regards, the test set out by the CJEU at paragraph 69 of its decision in Land Baden - Württemberg should be borne in mind:
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”. (my emphasis)
25. The European Commission’s first proposal for the AIE directive (Com/2000/0402 final – COD 2000/0169 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.CE.2000.337.01.0156.01.ENG&toc=J:C:2000:37E:TOC) ) envisaged that the exception in article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit”. It went on to acknowledge that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course activities” before noting that “authorities should be able to refuse access in such cases in order to ensure their proper functioning”. The interest which the “manifestly unreasonable” exception seeks to protect therefore is the interest in ensuring a public authority is not overburdened by a request, to the extent that this interferes with its ability to perform its other tasks and duties.
26. As set out above, the Council has stated that the information it holds relevant to the request can be divided into two categories, namely; laboratory monitoring data and construction and maintenance records. I will consider these two aspects of the request separately.
Laboratory Monitoring Data
27. On 21 July 2022, the Council informed the Appellant that it was in a position to provide him with laboratory monitoring data outside the AIE process. The Council was of the view that it could not make a decision on his AIE request to release this data separately to him. The Applicant was advised that the Council was obliged to deal with the entire scope of his AIE request for the laboratory monitoring data and the construction and maintenance records for the Ballinameen Waste Water Treatment Plant.
28. Given that the Council has confirmed that this information is readily accessible, this aspect of the request cannot be found to be manifestly unreasonable. Nothing in the AIE Regulations would have prevented the Council releasing this information to the appellant when its original decision issued on 28 of July 2022 and considering the remainder of the information relevant to the request separately.
29. The Council had advised the appellant that it could release the laboratory monitoring data via email or on a USB stick. In correspondence with this Office, the appellant indicated that his preference would be for the information to be provided to him in hard copy paper format. The Council has indicated that this information is in the form of excel spreadsheets, and this may result in spreadsheets being printed across multiple pages. Nonetheless, the appellant has indicated that he does not have the facility to receive data in electronic format. I will direct release of this information to the appellant, and would ask the Council to liaise with the appellant as to his preferred format.
Construction and Maintenance Records
30. The Council has estimated that to process the remaining aspects of the appellant’s request would involve 129 hours of work (approximately 3 working weeks), and 4 employees of the Council. The details of how this estimate was reached are set out above. I accept the Council’s time estimate is reasonable.
31. I consider the following factors to be of particular relevance in this appeal:
a) The volume and range of information sought;
b) The time-span covered by the request;
c) The fact that the information is held in hard-copy in three separate locations;
d) That the Council is no longer the sanitary authority in relation to Ballinameen Waste Water Treatment plant;
32. I accept that the Council staff also have to carry out the Council’s other core functions. I consider that the amount of time that it would take the Council to respond to the request is significant, relative to the size of the Council. I also find that this is not the type of information that one would expect the Council to have available digitally, or to have actively disseminated, given the age and content of the information and the fact that the Council is no longer the sanitary authority for Ballinameen Waste Water Treatment Plant.
33. I have had particular regard in this case to the volume and the range of information sought, the nature of the information requested, the task that must be reasonably undertaken to identify it, and the impact of dealing with the request on the Council’s other functions.
34. Having considered all of the above factors, I find that the threshold under article 9(2)(a) has been met and the request, as formulated, is manifestly unreasonable.
35. Having found that article 9(2)(a) applies to this request as currently formulated, I will proceed to consider whether the public interest in disclosure outweighs the interest in refusal as set out in article 10(3). I consider the factors set out by the Council in its original and internal review decisions, which I have set out below, to be of relevance.
36. In favour of disclosure, I consider the following factors of be of relevance:
a) The public interest in persons having a right of access to environmental information;
b) The public interest in public bodies being open, transparent and accountable;
37. In favour of refusal, I consider the following factors to be of relevance:
a) The public interest in ensuring that the processing of AIE requests does not cause an unreasonable interference and/or disruption to the work of a public body and/or impair its ability to perform its core functions
38. This Office sought submissions from the appellant on the application of the public interest test to this appeal, but the appellant did not put forward any particular argument as to why the public interest in disclosure would outweigh the interest served by refusal. I consider that in this case the public interest in disclosure of this information is lessened in circumstances where the information held by the Council is over 10 years old, and the Council is no longer the sanitary authority for the water treatment plant. In this particular appeal, I find that the public interest served by disclosure does not outweigh the interest served by refusal.
39. It is open to the appellant to submit a new request to the Council, taking into account the matters set out above.
40. I emphasise that my conclusion in this case should not be taken to mean that public authorities may rely on the exception in article 9(2)(a) in respect of every request for voluminous or wide-ranging information. Each request to a public authority must be considered on its own particular facts.
41. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental information, I vary the decision of the Council. I direct release of the laboratory monitoring data for Ballinameen Water Treatment Plant held by the Council, and I otherwise affirm the Council’s decision that the request was manifestly unreasonable.
42. 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