Cinneadh
Dr Fred Logue and Offaly County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-132022-N9N6D2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-132022-N9N6D2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council is entitled to rely on article 7(3) of the AIE Regulations in relation to the appellant’s request.
8 February 2024
1. Section 7 of the Planning and Development Act 2000 (as amended) requires a planning authority to maintain a planning register. It also sets out categories of information which must be included on that planning register at section 7(2)(a) to (z), including, particulars of any planning application made, the complete decision of the planning authority and/or An Bórd Pleanála on the application and any conditions imposed, particulars of any declaration or decision made under section 5 of the Act as to whether development is exempted development and particulars of any enforcement notice issued or enforcement action undertaken.
2. On 16 August 2022 the appellant wrote to Offaly County Council requesting information under the AIE Regulations. This request, as indicated by the appellant, was to ascertain “what information from the planning register is available online and where information is made available online whether information is excluded and/or whether it is made available online on a temporary basis”. As part of this request, an Excel spreadsheet was provided to the Council containing relevant fields to be completed by the Council (roughly corresponding to the information listed at section 7(2)(a) to (z) of the Planning and Development Act). This included a field indicating where the information sought could be found online through the provision of a URL link. The request also asked the Council to set out any information excluded from the information available online along with the basis for such exclusion and to indicate where information was published temporarily, the duration for which it was published and the basis for temporary publication.
3. On 15 September 2022 the Council wrote to the appellant indicating that the request for information was to be granted and provided the appellant with an Excel spreadsheet which contained a general link to the Council’s planning website in response to each field.
4. On 19 September 2022, the appellant contacted the Council seeking an internal review. He submitted that the table had not been accurately completed and that he was seeking “the specific URL for each category of information on the planning register”. He noted, for example, that the link provided by the Council did not contain details of any referrals or decisions made under section 5 of the Planning and Development Act nor did it contain any details of enforcement decisions.
5. In its internal review Decision, the Council replied to the appellant’s request by again affirming that the “detail to which you refer is available at the link already provided”. The internal review went on to note that “by selecting the ‘tile’ called PLANNING SEARCH, a requester can search for individual applications by using various search criteria” either “by selecting Eplan” or through an “interrogation of] Gplan, which is the map of the register”. It stated that “the information is available by using each of the aforementioned routes” and “there is no individual link to each of the items you have referenced”. Finally, it informed the appellant that the online register was incomplete in relation to Section 5 declarations but that these files were available to view in hard copy at the Planning offices. It did not respond to his submission in relation to the availability of enforcement notices.
6. The appellant submitted an appeal to this office on 3 November 2022.
7. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and Offaly County Council. 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.
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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, the Commissioner will require the public authority to make available environmental information to the appellant.
9. The appellant has provided the Council with a template Excel sheet and has noted that he seeks specific URLs in response to each category of information referred to on that sheet or, an indication that the information is not available online. The Council has responded by providing the appellant with a link to its planning website, informing him that “there is no individual link to each of the items referred” and that he can search for the information he has requested on his template Excel sheet by searching that website. The Council has not referred to any article of the AIE Regulations in either its correspondence with the appellant or in the limited submissions it made to this Office. However, by indicating that the information is available on its website or by visit to its planning office, it appears to be attempting to rely on article 7(3) of the AIE Regulations which permits the provision of information requested in an alternative form or manner to that requested by an appellant provided certain conditions are fulfilled.
10. My decision in this case is therefore concerned with whether the Council was justified, under article 7(3) of the Regulations, in refusing access to the information requested by the appellant in the form or manner requested by him.
11. I wish to observe that the Council did not make the basis for its position clear in its correspondence with the appellant. While it may have considered it unnecessary to do so at original decision stage as it was of the view that it was granting the request, it did not engage sufficiently with the appellant’s arguments at internal review stage nor did it refer to any provision of the AIE Regulations in its internal review decision despite the appellant having made it clear that he was not satisfied with the form in which the information had been provided. It provided minimal detail to this Office in support of its position and did not respond to a request for submissions sent by the Investigator. The Council is subject to a duty to give reasons for its decision. This arises, not only by virtue of articles 7(4) and 11(4) of the AIE Regulations (and, in this case, article 7(3)(b)), but is also a core principle of administrative law and a fundamental element of constitutional justice. The Courts, and 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 (see, for example, Right to Know v An Taoiseach [2018] IEHC 372, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bórd Pleanála [2019] IESC 90). This duty arises so that a requester can take a view as to whether they consider the position of the public authority to be justified, or whether they wish to exercise the entitlement to have that position reviewed. It is also completely unsatisfactory that the Council would fail to set out its position clearly before this Office and to respond to requests for further information. I would therefore encourage the Council to take steps to engage more fully with the AIE Regulations and with this Office in the future.
12. Article 7(3) of the AIE Regulations provides as follows:
(a) Where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless –
(i) the information is already available to the public in another form or manner that is easily accessible, or
(ii) access in another form or manner would be reasonable.
(b) Where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefore shall be given by the public authority in writing.
13. In this case, the appellant requested specific information, from the Council on what parts of the planning register, as maintained by the Council, were available online as well as specific URL links indicating where each category of information set out in section 7(2) of the Planning and Development Act could be found. The Council however provided the appellant with a generic link to the general planning section of the Offaly County Council website, informing him that the information he sought was available through searches using the ePlan or GPlan function on that website.
14. The AIE Regulations make it clear that the default position is that an appellant is entitled to be provided with information in the form or manner requested. It is only possible to depart from that default position where the requirements of article 7(3)(a) are satisfied. In order for article 7(3) to apply, it must be established either:
i. that the information requested by the appellant was already publicly available in an easily accessible form or manner; or
ii. that the access provided by the Council was reasonable.
15. The first question I must consider therefore is whether it can be said that the information requested by the appellant was already publicly available in an easily accessible form or manner. This is the point the Council appeared to allude to in its internal review when it informed the appellant that he could find the information requested through searches of its general planning website using either the ePlan or GPlan functions.
16. However, the Council also indicated in that internal review decision that its planning website was incomplete and did not include at least one category of information in respect of which the appellant had made enquiries (i.e. Section 5 Declarations). It informed the appellant that these were not available online and instead were available to view in hard copy at its planning offices.
17. It is important here to consider the appellant’s request. What the appellant is seeking, in this case, is information as to what elements of the Council’s planning register are available online. He has provided the Council with an Excel sheet indicating the form in which he wishes that information to be provided. The Council has instead provided him with a link to its website and instructed him to search the website himself to see what information is available. It has admitted that were the appellant to do so, he would not be in a position to find certain information as, at the date of his request, it had not published some of the categories of information listed in the request on its website. It might be said that some of the information requested by the appellant is publicly available in the sense that the appellant could conduct searches of the Council’s planning website and, assume, if he cannot find information on certain categories included in his request, that this is because those categories have not been published. However, it cannot be said, in my view, that such information would be “easily accessible” as it would be difficult for the appellant – who, unlike the Council, will not be aware of the internal systems and protocols applying to online publication - to reach a definitive conclusion as to whether the information had not been published or whether his searches had been unsuccessful in locating it. I reach this conclusion having regard to the fact that the decision of the Supreme Court in National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 makes it clear that the Regulations are to be interpreted teleologically and bearing in mind that articles 3(5) and 7 of the AIE Directive make it clear that arrangements must be in place to ensure the public are adequately supported in seeking access to information and that public authorities take steps to ensure that access can be effectively exercised.
18. In addition, the appellant has also asked the Council, as part of his request, to provide explanations where information has not been published and those explanations are not publicly available. Indeed, I note that the sample response provided to the appellant in relation to Strategic Housing Developments indicates that section 5 declarations have been published online by the Council. However, following the appellant’s indication in his request for an internal review that he could not find such declarations, the Council amended its position and informed him that those declarations were not, in fact, available on its website. It is therefore not clear that all of the information requested by the appellant is, in fact, publicly available. In other words, if the appellant were to follow the Council’s instructions and conduct his own searches and find, as the Council has already admitted, that certain information is not available, he would need to follow up with the Council to be provided with the explanations he has sought as part of his request. All of the information he has requested is therefore not publicly available.
19. I am therefore not satisfied, on the basis of the information before me, that the information requested by the appellant is already publicly available in another form or manner that is easily accessible and it is therefore not possible for the Council to rely on article 7(3)(a)(i) of the AIE Regulations in the circumstances of the present case.
20. The next question to consider is whether the form or manner in which the Council has responded to the appellant’s request is reasonable. The Council has provided no reasoning either to this Office or to the appellant which supports the conclusion that it is reasonable to provide a generic link instead of specific indications of where the relevant categories of information are available online or, indeed, whether they are available online at all. It has indicated, in submissions to this Office, that because the appellant “did not seek any specific information in relation to any particular planning file…we were unable to assist him further in his request”. However, article 7(1) of the AIE Regulations provides that a public authority “shall…make available to the applicant any environmental information, the subject of the request, held by or for the public authority”. There is no requirement therefore for the applicant to limit his request to information on a particular planning file.
21. The Council also appears to have suggested, in its internal review decision, that it would be open to the appellant to review its planning website to ascertain for himself the categories of information which have been published on that website. It is not clear to me why it would be reasonable to expect the appellant to carry out this task, rather than the Council. In the first instance, the Council will be more familiar with the contents of its own website than the appellant. Secondly, as outlined above, the appellant is less likely to be able to reach a definitive conclusion as to what is available on the Council’s website than the Council itself. I also note in this regard that the appellant submits that he issued the same request to thirty-one local authorities and twenty-four have provided him with a response in the form or manner requested. This, in and of itself, is not the decisive factor in this case but in circumstances where (i) the Council has suggested that it would be possible for an individual requester to obtain individual URL links by searching its website, (ii) twenty-four other councils have been able to provide satisfactory responses to the appellant’s request, (iii) there is no other information before me to suggest a basis on which it would be reasonable to expect the appellant to search for the information he seeks on the Council’s website and (iv) it is clear that such a search would not necessarily provide the appellant with the entirety of the information he seeks, I am not satisfied that the provision of access in the form proposed by the Council is reasonable.
22. I am therefore not satisfied, on the basis of the information before me, that the provision of access in the form proposed by the Council is reasonable and it is therefore not possible for the Council to rely on article 7(3)(a)(ii) of the Regulations in the circumstances of the present case.
23. I am satisfied, for the following reasons, that it is reasonable, and within this Office’s jurisdiction to direct the Council to provide the appellant with the information he has requested in the form requested by him:
(i) Article 12(5)(c) provides this Office with jurisdiction “where appropriate” to “require the public authority to make available environmental information to an appellant”.
(ii) Article 7(3) of the Regulations makes it clear that a public authority shall provide information in the form or manner requested by an appellant unless it can demonstrate that the limited exceptions provided for in that article apply. The Council has not demonstrated that either of the exceptions contained in article 7(3) apply in the circumstances of this case.
(iii) Article 5(1)(b) makes it clear that there is an obligation on public authorities to make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means.
(iv) The request itself asks the Council to indicate and demonstrate what aspects of the planning register (which it is required under the Planning and Development Act to make publicly available) are available online and the Council has indicated that a significant portion of the information can be ascertained from a search of its website. I therefore do not consider it necessary to remit the matter to the Council for fresh consideration and am of the view that doing so would provide it with what would, in my view, be an unwarranted opportunity to provide reasons for its refusal to provide the information in accordance with its obligations under article 7(3) in circumstances where it failed to provide those reasons both in its interactions with the appellant and in the course of engagements with this Office.
24. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision and direct it to provide the information requested by the appellant to him in the form and manner requested.
25. 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