Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-112656-B6W4T3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing the appellant’s request on the basis that no environmental information within the scope of that request is held by or for it
1. On 9 August 2021, the appellant wrote to the Department of Public Expenditure & Reform (the Department) to request the following:
(1). All correspondence between the Department of Public Expenditure & Reform (DPER), including the Minister of State Patrick O’Donovan and his office, and staff of, including the members of the Executive of Roscommon County Council and/or the elected members of Roscommon County Council in the period from 1 January 2021 to the date of this request, concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon;
(2). All internal correspondence in the period 1 January 2021 to the date of this request concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon;
(3). All correspondence between the Department of Public Expenditure & Reform, including the Minister of State Patrick O’Donovan and his office, and the Geological Survey Ireland (GSI) in the period 1 January 2021 to the date of this request concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon;
(4). All correspondence between the Department of Public Expenditure & Reform, including the Minister of State Patrick O’Donovan and his office and the OPW in the period 1 January 2021 to the date of this request, concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon;
(5). All correspondence between the Department of Public Expenditure & Reform, including the Minister of State Patrick O’Donovan and his office, and the National Parks and Wildlife Service (NPWS) in the period 1 January 2021 to the date of this request concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon.
2. The Department responded to the request on 27 August 2021 indicating that it did not hold any information relevant to the request. It informed the appellant that the OPW might hold some of the information and that it was open to him to submit a separate AIE request to the OPW should he wish to do so.
3. The appellant sought an internal review on the same date. The outcome of the internal review was issued to him by the Department on 7 September 2021. It affirmed the original decision to refuse access to the information on the basis of article 7(5) of the AIE Regulations as no relevant records existed.
4. The appellant appealed to my Office on 9 September 2021.
5. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
6. My review in this case is concerned with whether the Department is entitled to refuse the appellant’s request on the basis that no environmental information within the scope of that request is held by or for the Department, within the meaning of the AIE Regulations.
7. I wish to apologise to the appellant for the delays experienced in the resolution of this appeal. I also wish to acknowledge that those delays occurred in circumstances where the appellant had drawn this Office’s attention to the background of the requests and requested that the appeal be prioritised. We are aware of the need to ensure a more efficient and timely resolution of appeals, and this Office remains committed to addressing that need.
Submissions of the Parties
8. The Department’s position in this case may be summarised as follows:
(i). The Department submits that the fact that no records are held by or for it is not unusual as the Lough Funshinagh project is not funded through the Arterial Drainage Act 1945 (as amended). It explains that the OPW often prepares flood relief schemes in partnership with relevant local authorities and may carry out works through a number of different mechanisms. The Department submits that where the mechanism set out under the Arterial Drainage Act is used, confirmation from the Minister for Public Expenditure & Reform (the Minister) is necessary but that the Minister only has a role in authorising flood relief schemes submitted to him under that legislation. The Department submits that as Roscommon County Council chose to progress the Lough Funshinagh works under a different legal instrument, the Department had no role in the preparation or confirmation of the works related to Lough Funshinagh nor would there be any reason for any documentation relating to the preparation or authorisation of the works to have been created in, or shared with, the Department.
(ii). It further submits that while it funds the flood relief works carried out by the OPW, it has no involvement in the vast majority of flood relief schemes within the OPW with the exception of schemes submitted to the Minister under the Arterial Drainage Acts. It submits that the majority of flood relief schemes are developed locally in consultation with local authorities and are generally routed through the planning regulations. It states that of the 90 schemes the OPW had at design or construction stage as of December 2021, only four were submitted for approval under the Arterial Drainage Acts. It submits that the Department has no reason to hold records in relation to the development of the schemes outside of those submitted for Ministerial confirmation under the Arterial Drainage Acts.
(ii). In response to queries from the Investigator as to the steps taken to search for any information within the scope of the request, the Department noted that its Corporate Support Unit had contacted three Votes to carry out searches for any relevant information – Agriculture, Food and the Marine, Environment and Climate Change, and Housing, Local Government and Heritage. The submissions also referred to the OPW Vote Unit and the author of the submissions was attached to that Unit.
(iv). In response to a request for clarification, the Department confirmed that the OPW Vote Unit had also carried out searches for relevant information and that the OPW Vote Unit was directly responsible for handling the request. It explained that the Department uses an electronic filing system, known as eDocs, which allows for the electronic creation and storage of documents. It went on to explain that the eDocs system limits permissions to staff in a particular Division or Business Unit and it was therefore necessary for the OPW Vote Unit to consult the other three Units in order to ascertain where any relevant information might be held. It provided a copy of its Record Management Policy which notes that eDocs should be used as the key repository for storing electronic records and as the main method to share them with colleagues.
(v). The Department submits that a search was carried out electronically of eDocs, eCorr (which is the system on which representations received by the Department are stored) and the ePQ system for the terms “Lough Funshinagh” and “Funshinagh”. It noted that no manual files were in scope as the timeframe of the request was within 2021 when the Department was operating through remote working. It submits that responses were received from staff members in the Agriculture, Food and the Marine, Environment and Climate Change, and Housing, Local Government and Heritage Votes indicating that none of those Votes had located any records relating to the request.
(vi). It also notes that it contacted the OPW in relation to the request and was advised that the OPW had not located records which involved the Department “as the request had no relevancy for [the Department] or the OPW Vote (in [the Department])”. It submits that it also asked the OPW whether it would accept a transfer of the request but had been advised by the OPW that it had received a similar request and that it might therefore be optimal for the Department to respond directly to the requester if it did not hold any relevant information.
(vii). It submits that a search of the ePQs system had located some Parliamentary Questions (PQs) which had been answered by the Minister of State for the OPW but that it considered these records to be outside the scope of the appellant’s request as they did not constitute “correspondence between the Department and any of the named bodies or internal correspondence of the Department itself” and no other relevant records were located. It reiterated that this was the expected outcome as staff in the OPW Vote Unit would have been alerted by the arrival of any documentation on flood schemes other than those which have been submitted to the Minister for confirmation as this process is quite significant and requires a large input from the Department. It also reiterated that the OPW Vote Unit would have been aware of the Lough Funshinagh scheme had it been prepared for processing by means of the Arterial Drainage Acts but given that it was not, the Department had no role in the process and was not involved in any way with its development.
9. The appellants submits as follows:
(i). He argues that it is unsustainable for the Department to assert that no information is held by or for it within the scope of his request and submits that the Department has not dealt with the question of records which might be held by the Minister of State for the OPW and his office.
(ii). He refers to a Press Release of 19 May 2021 in which Minister of State for the OPW (the Minister of State) “pledged his support for Roscommon County Council’s planned emergency intervention at Lough Funshinagh” as well as a further Press Release of 10 June 2021 , following a visit by the Minister of State to the site, in which the CEO of the Council is quoted as thanking “Minister O’Donovan and the Government for making the resources of the OPW available to me to carry out these urgent works”. He submits that the Minister of State has had a significant level of involvement with the issue of flooding at Lough Funshinagh. He also submits that as a Minister of State assigned to the Department, any relevant information held by or for the Minister of State, is held by or for the Department.
(iii). He submitts that it is not sustainable for the Department to argue that just because the scheme was carried out outside of the provisions of the Arterial Drainage Act that the Department had no role or involvement in it and that it is precisely because the scheme was carried out outside of the Arterial Drainage Act that the Department, in particular through its Minister of State, had very extensive involvement.
(iv). He submits that the Department sits on a working group in relation to the proposed works at Lough Funshinagh and provided minutes of a meeting of Roscommon County Council dated 24 May 2021 which refer to approval being received “from the Department to proceed with emergency works” in relation to “the flooding crisis in Lough Funshinagh”. He notes that his belief is that references to “the Department” having approved the works were references to the Minister of State at the Department with responsibility for the OPW.
(v). He submits that the OPW does not have remit, of itself, to finance such a scheme and believes the scheme could not have been sanctioned by the OPW without some political direction as there is no legal basis for the OPW to carry out such works, except where directed. He submits that the political direction came from the Minister of State and that the request raises significant public interest issues “such as the lack of political accountability for the actions of the OPW if the Minister of State with responsibility for the OPW, has in fact ceased to be a Minister of State of the lead Department”.
(vi). He submits that the Department’s response to the request “is simply around the question as to whether when Patrick O’Donovan was appointed Minister of State with responsibility for the OPW, he in fact ceased to be a Minister of State”. He argues that “if he did not then…his records come within the scope of this request” and “whether they are also held by or for the OPW is a separate issue”.
(vii). He refers to a similar request made by him to the OPW (which was also appealed to this Office and was the subject of a decision in OCE-115424-T4K5P6 ) and submits that “the key question” in both appeals “is whether the records of Minister O’Donovan are to be made subject to the AIE requests”.
(viii). He also submits that there is significant public interest in disclosure of the information requested in circumstances where two sets of High Court proceedings in relation to the Lough Funshinagh works “have disclosed significant breaches of environmental law in relation to schemes to extract substantial volumes of water from a Special Area of Conservation” and where €2 million of public money has been spent on the works to date.
10. 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.
11. As outlined above, the Investigator wrote to the Department requesting that it outline the steps it had taken to search for relevant information within the scope of the appellant’s request. Those steps are outlined above and in essence, consisted of searches carried out by staff members of four Vote Units within the Department (Agriculture, Food and the Marine, Environment and Climate Change, Housing, Local Government and Heritage and the OPW) on the eDocs, eCorr and ePQ systems using the search terms “Lough Funshinagh” and “Funshinagh”.
12. When asked about the steps it had taken to consider whether any relevant information might have been misfiled or misplaced the Department submitted that “it was not expected that there would be any records relating to Lough Funshinagh so it was expected that there would be no records returned” but that “eDocs also has a comprehensive search function which did not yield any records from other files”. However, the Department later explained that it was necessary for staff of the four Votes to search their own areas as “the electronic filing system in the Department, ‘eDocs’, will limit permissions to staff in a particular Division or Business Unit”. It is therefore not clear how misfiled or misplaced information would have been captured through a search of the eDocs system.
13. I also note that searching the relevant systems using the terms “Lough Funshinagh” and “Funshinagh” may not have captured all of the information requested. I note that the request was for all correspondence from 1 January 2021 to 9 August 2021 within the Department and between the Department and Roscommon County Council, Geological Survey Ireland, the Office of Public Works and the National Parks and Wildlife Service “concerning flooding and/or proposed flood relief works at Lough Funshinagh, County Roscommon”. It would be reasonable, in my view, to expect the Department to also conduct searches using slightly broader terms, for example, “flooding”, “flood relief works” or “Roscommon” or to search for correspondence by date range with the entities listed in the Department’s request.
14. The Department also noted, in response to the Investigator’s search queries, that “no manual files would have been in scope as the time frame was within 2021 (during the period when the Department is operating via remote working)”. When asked by the Investigator to clarify whether steps had been taken to account for the possibility that hard copy files may have been created, the Department’s response was as follows:
“In addition to the principles of the Department’s record management policy, the reference period also coincides with Covid-19 restrictions, which severely reduced in person attendance at the Department’s Offices. As a result, the use of hard copy or physical files across all functions of the Department reduced dramatically as one would expect.
It should also be noted that this position is not only informed by the fact that there was little to no scope for the generation of hard copy correspondence during this period, but more fundamentally by the fact that this Department has had no role or function in the matter of flood relief works at Lough Funshinagh. This has been the Department’s position from the outset and the absence of relevant records was the expected outcome in this regard.
It is also noted that the appellant’s position as outlined in your correspondence does not put forward a contention regarding the adequacy or otherwise of a specific physical search but rather asserts that it would be unsustainable for the Department not to hold records due to the role of the Minister of State with responsibility for Public Works in this matter.
As outlined in this submission, the appellant’s assertions are not reflective of the operational realities of the Department. The Minister of State’s work in respect of this matter is not administratively supported by staff of the Department or by IT systems of the Department. These supports are provided by the OPW and if any records relevant to the request are held, the OPW may be the relevant public authority in this regard, as suggested by the decision maker in the decision letter of 27th August 2021”.
15. I note, in this regard, having reviewed the Department’s Record Management Policy, that while it does note that “eDocs should be used as the key repository for storing electronic records and as the main method to share them with colleagues”, it does also make provision for the maintenance of hard copy files.
16. I also note that the Department’s search seems to have been limited to four Vote Units and does not appear to have encompassed searches of the offices of either the Minister of Public Expenditure and Reform or the Minister of State at the Department of Public Expenditure. I will deal with this issue in further detail below but it would seem reasonable to expect, given the request included a request for internal correspondence and made specific reference to a Minister of State at the Department, that the searches carried out and/or the explanations provided by the Department, would account for the possibility that the Ministers and/or their respective offices might have corresponded with one another, or with others, about this relatively high profile issue. As noted in the Department’s submissions at paragraph 14 above, its position is that searches would not have identified any correspondence or information from the Minister of State or his office as his work is carried out in the OPW and using the resources of the OPW including its staff and IT facilities. However, I note that this was not explained to the appellant or to this Office until specific requests were put to the Department in that regard. In any event, it does not appear that limiting searches to the relevant Vote Units would have sufficiently accounted for the possible existence of correspondence to or from the Minister of Public Expenditure and Reform relating to the proposed works at Lough Funshinagh. That is not to say that such correspondence necessarily exists, merely that I am not satisfied that reasonable and adequate steps have been taken to search for it. I also note in this regard that the Records Management Policy provided to this Office by the Department refers explicitly to a requirement to appoint “at least one Information Officer for each Principal Officer area” before providing that “an Information Officer must also be appointed to the Minister’s Office [and] the Minister of State’s Office”. The Department’s submissions do not indicate that either of those Information Officers were consulted nor do they address the question of why an Information Officer would be needed for the Minister of State if, operationally, he does not work within the Department.
17. With respect to the Department, and acknowledging that it did respond to each request sent by my Office promptly and with responses to each query, it seems to have taken an overly narrow approach to the appellant’s request. The Department appears to have immediately taken the view that since the Lough Funshinagh works were not progressed through the Arterial Draining Acts it should have had no information within the scope of the appellant’s request and limited its searches accordingly. The AIE Directive makes it clear that the objective is “to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information”. In my view, this lends support to lend support to the position that the approach envisaged by the AIE Directive and Regulations is that requests should be interpreted broadly rather than narrowly and I consider the Department’s approach to the appellant’s request to have been overly narrow.
18. For the reasons set out above, I do not accept that the Department has taken reasonable or adequate steps to search for all environmental information held by or for it within the scope of the appellant’s request. I propose therefore to remit the matter to the Department so that further searches may be carried out.
19. In order to ensure that fresh searches are carried out in accordance with the AIE Regulations, I believe it might be useful for me to briefly address an issue which appears central to the appellant’s belief that it is not sustainable for the Department to assert that no information within the scope of his request is held by or for it.
20. As outlined above, the appellant has provided evidence to suggest that Minister of State for the OPW has had a significant degree of involvement in the proposed flood relief works at Lough Funshinagh. The Press Release of 19 May 2021 provided by the appellant explicitly notes that “in response to a letter received on 19 May from the Chief Executive of Roscommon County Council seeking the assistance of the Office of Public Works (OPW) in carrying out urgent works to install an emergency overflow pipe from Lough Funshinagh to the River Shannon, the Minister confirmed that the OPW will supply the resources requested so that the emergency works can commence without delay”. There would appear, therefore, to be at least one item of correspondence between the Minister of State for the OPW and Roscommon County Council in relation to the Lough Funshinagh works. The appellant also argues that references to “the Department” in the minutes of the meeting of Roscommon County Council of 24 May 2021 should be understood as reference to the Minister of State at the Department with responsibility for the OPW.
21. It should be noted at this juncture that the Department has submitted that it has no record of participating in a working group relating to Lough Funshinagh and that it had made enquiries with the OPW in this respect which had confirmed that neither the Department nor any of its officials participated in the Lough Funshinagh Expert Working Group. It also points out that the references in the Council minutes are to an unspecified Department and not explicitly to it and reiterates that it had no role or function in approving the Lough Funshinagh scheme.
22. The crux of the appellant’s dissatisfaction with the Department’s response to the request appears to be that the Department has not sufficiently explained how it could be the case that no information within the scope of his request is held by or for it, when it is clear that a Minister of State attached to the Department, has had some significant involvement in the arrangements surrounding the proposed works at Lough Funshinagh. While it would perhaps have been helpful had the appellant made his position in that respect clearer to the Department in his request for an internal review, it must also be said that the Department did not fully meet its duty to provide the appellant with adequate reasoning for its decision that no information within the scope of his request was held by or for it. That duty is clearly outlined in articles 7(4) and 11(4) of the AIE Regulations and the High Court in Right to Know v An Taoiseach [2018] IEHC 372 has made it clear that merely invoking the statutory ground upon which the public authority seeks to rely is not a sufficient reason for refusal.
23. The Department’s original decision did give an outline of the steps it had taken to search for records before informing the appellant that no information within the scope of his request had been located. The appellant, in seeking an internal review, noted his belief that the Department’s position was unsustainable and asserted that this was “confirmed by other records which we are in possession of”. It also reiterated that the request “includes all electronic communications on electronic devices under the control of officials and management of the Department of Public Expenditure and Reform, including the Minister of State Patrick O’Donovan and his office”.
24. When asked by my Investigator for detail as to the operational arrangements of the Minister of State for the OPW, the Department outlined that the Minister of State maintains an office in the OPW’s Dublin office and does not maintain an office in the Department. It also advised that the Minister of State with responsibility for the OPW does not make use of IT systems or electronic devices provided to him by the Department and that no such systems or devices are available or provided to him. It submitted that the IT systems and devices used by the Minister are provided by the OPW only. It also confirmed that all staff assigned to support the Minister are OPW staff and that no staff are provided to the Minister by the Department nor are any Department staff seconded to the Minister. It noted that the Minister’s Private Secretary was an OPW member of staff and that the Minister’s operational arrangements had been confirmed by his Private Secretary. The Department submitted that “these arrangements reflect the operational reality where OPW is a separate public authority to the Department of Public Expenditure, NDP Delivery and Reform”.
25. The Investigator also put queries to the Department in relation to the legal basis and funding for the proposed works at Lough Funshinagh, having regard to the appellant’s contention that “the OPW does not have remit, of itself, to finance such a scheme” and that “the scheme could not have been sanctioned by the OPW without some political direction as there is no legal basis for the OPW to carry out such works, except where directed”. She referred to the Department’s previous submissions that it had no involvement in the development of the vast majority of flood relief schemes with the OPW which are developed locally in consultation with local authorities and that the only exception is for schemes which are submitted to the Minister for confirmation under the Arterial Drainage Acts (as amended). She noted that her understanding was that the Department, through the OPW Vote, allocates a yearly budget to the OPW and that the OPW has a certain degree of autonomy with regard to the spending of that budget, subject to it acting within the limits of its statutory authority and the Public Spending Code (which requires the approval of the Government (i.e. that the Department act as the Approving Authority) for projects with costs in excess of €100 million).
26. The Department, in its response, noted that the Investigator’s understanding of the budgetary process for the OPW was “broadly correct” and submitted that “Exchequer funding of OPW activity is appropriated by the Oireachtas and allocated to expenditure programmes under its remit”. It went on to state that “the OPW has a certain degree of autonomy in regards to how resources are operationally allocated within these programmes provided [there is] ongoing compliance with the Public Spending Code and Public Financial Procedures”.
27. The Investigator also informed the Department that her understanding was that the Lough Funshinagh scheme was carried out by Roscommon County Council under the Local Authorities (Works) Act 1949 with the OPW providing assistance in the form of contracting works and funding. She noted that she understood the Department’s position on this appeal to be that the assistance and funding of the scheme provided by the OPW was done without the involvement of the Department and involved an autonomous decision of the OPW to use its own funding (allocated through the yearly Vote) which did not require any further or specific Department approval. Instead, the Department’s position, as she understood it, was that although the Minister of State with responsibility for the OPW is attached to the Department, from an administrative perspective he works independently of the Department using the resources and systems of the OPW meaning that any information generated by the Minister and/or his office relating to the Lough Funshinagh works would be held by or for the OPW and not the Department.
28. Unfortunately, the Department did not clarify whether the understanding of its position with regard to the administrative arrangements of the Minister for State with responsibility for the OPW were correct and simply responded:
“In regards to [the Investigator’s] query concerning the legal basis for the provision of assistance of the OPW to Roscommon County Council, I note that it is your understanding that the works were carried out by the Council under the Local Authorities (Works) Act 1949. The Minister for Public Expenditure, NDP Delivery and Reform has no role under this Act and accordingly, this Department would not be best placed to speak to the operation of this Act”.
29. As outlined in the decision in OCE-115424-T4K5P6 , the OPW has informed this Office that the response to the flooding situation at Lough Funshinagh is being led by Roscommon County Council in accordance with the provisions of the Local Authorities (Works) Act 1949 with the OPW acting as Contractor for the works to provide resources to assist with the delivery of those works and also providing funding, following a request for assistance from the Council.
30. The Department did note in its internal review that “the lack of relevant records is not unusual in this instance as the scheme in question was not funded under the Arterial Drainage Act 1945” and the “Minister for Public Expenditure and Reform only has a role in authorising flood relief schemes submitted to him under that legislation”. It went on to note that “in the case of Lough Funshinagh, the Local Authority in question, Roscommon County Council chose to progress the works under a different legal instrument” meaning that the Department “had no role in the preparation or confirmation of the aforementioned works, nor would there be any reason for any documentation relating to the preparation or authorisation of the works to have been created in, or shared with, this Department”. However, it did not make any reference to the Minister of State at the OPW in its internal review outcome or provide any explanation of why it considered information held by or for the Minister for State not to be held by or for the Department despite his apparent attachment to the Department. Had it done so, this may have at least narrowed the issues for consideration in this appeal.
31. In its initial submissions to this Office, the Department referred to the appellant’s “unusual level of insistence that we hold records on a matter when we simply do not” and submitted that it was “at a loss as to why this is being pursued through this Department”. Again, I acknowledge that the appellant might have made his position slightly clearer when seeking an internal review butit is not difficult to understand why the appellant was sceptical of the its response that it held no information within the scope of his request when the Minister dealing with the scheme, and quoted in press releases relating to the proposed works at Lough Funshinagh, is a Minister of State at the Department. This is illustrative of the fundamental purpose of the duty on the part of public authorities to provide reasons for their decisions, not just as a matter of administrative law generally but also pursuant to the explicit provisions of article 7(4) and 11(4) of the AIE Regulations. Had the operational arrangements of the Minister of State for the OPW been made clear to the appellant at an earlier stage this might, at the very least, have narrowed the issues to be considered in this appeal.
32. Those operational arrangements provide some explanation as to why the Department considered it unlikely that information within the scope of the appellant’s request was held by it. However, as outlined above, it did not in fact carry out reasonable and adequate searches to confirm whether this was the case.
33. Not only that, article 7(5) provides for refusal of a request where no environmental information within the scope of that request is “held by or for” the public authority concerned. The Regulations and the Directive define environmental information held for a public authority as information “physically held by a natural or legal person on behalf of a public authority”. The Department does not appear to have given sufficient consideration to whether the request encompasses information which may be held by the Minister of State at the OPW on behalf of the Minister for Public Expenditure and Reform.
34. I note in that regard that OPW’s Governance Framework provides useful detail on the legal and governance structures applying to the OPW and how the OPW and the Department interact. It notes that the functions, powers and responsibilities of the OPW are contained in various Acts including the Public Works (Ireland) Act 1931, the Commissioners of Public Works (Functions and Powers) Act 1996 and the European Communities (Assessment and Management of Flood Risks) Regulations 2010. It also refers to the Minister and Secretaries Act 1924 and notes that under that Act, “the Commissioners of Public Works in Ireland (the Board of Commissioners) and its powers duties and functions are assigned to, and administered by the Minister [for Public Expenditure and Reform] as the responsible head of the Board of Commissioners to Dáil Éireann”. It also notes that “under the State Authorities (Development and Management) Act 1993, Ministers and the Board of Commissioners are defined as State Authorities” and that “the powers conferred under the 1993 Act on a State Authority (other than a Minister) shall be exercisable only with the consent of the Minister”. The Governance Framework therefore states that the body of legislation applicable to the OPW “confers relevant and equal powers in relation to the OPW both on the Minister and the Board of Commissioners, provided that the Board of Commissioners obtain consent from the Minister in exercising those powers”. It then notes that “the current Minister of State for the Office of Public Works (the Minister of State) has special responsibility for the OPW”. It explains that:
“The Ministers and Secretaries (Amendment) (No 2) Act 1977 provides for the delegation of a Minister’s powers and duties to Minister(s) of State by Order made by the Government at the request of the Minister concerned. Delegation from a Minister to Minister of State of non-statutory responsibilities is generally made by way of an understanding between a Minister and Minister of State.
The Minister [for Public Expenditure and Reform] has delegated by way of an understanding, special responsibility for the OPW to the Minister of State for the Office of Public Works. The Minister [for Public Expenditure and Reform] remains responsible to Dáil Éireann for the exercise or performance of any powers or duties delegated to the Minister of State.
[…]
A Special Advisor to the Minister of the Office of Public Works is in place. The role of the Special Advisor is to assist the Minister or the Minister of State, as the case may be, by providing advice, monitoring, facilitating and securing the achievement of Government objectives that relate to the Department, and performing such other functions as may be directed by the Minister or the Minister of State, as the case may be, or any other office holder.
[…]
The primary contact between the Minister [for Public Expenditure and Reform] and the OPW is through the Chairman and the Minister of State.
The primary contact between the Minister of State and the OPW is the Chairman. The Chairman communicates regularly with the Minister of State and meets as required for discussion on the oversight and progress and monitoring of the functions of the OPW. The OPW Management Board meets formally with the Minister of State as considered necessary. Minutes of the meetings taken are recorded and maintained by the Chairman’s Office.
Human Resource Management in the OPW manages the appointment of staff to the Minister of State’s Office, when their selection is advised and approved by the Minister of State. Staff within the Minister of State’s Office provide administrative and advisory support to the Minister of State and act as a liaison between the Minister of State and the OPW.
The Minister of State’s Office is responsible for the management of correspondence involving the Minister of State from members of the public, public representative and interest groups”.
35. I also note, with regard to the delegation of powers by the Minister to the Minister of State, that as of 18 January 2023, no formal delegation of Ministerial functions had taken place ( https://www.oireachtas.ie/en/debates/question/2023-01-18/412/ ).
36. In those circumstances, the Department’s further searches will need to account for any information which comes within the definition of “environmental information held for a public authority”. Those searches should also account for the possibility that, although it may not have been necessary to consult the Minister for Public Expenditure and Reform in his capacity as a decision-maker under the Arterial Drainage Acts, the Minister might nonetheless have communicated with the Minister of State to whom special responsibility for the OPW has been delegated in relation to the works at Lough Funshinagh given that it is the Minister who is ultimately answerable to Dáil Éireann in relation to those works, such that it might be possible that information within the scope of the appellant’s request is held by the Minister.
37. I note in this regard that the appellant has made a similar request to the OPW and that the decision of this Office in OCE-115424-T4K5P6 remitted that request to the OPW to be considered afresh. It may therefore be open to the Department, when considering the remitted request, to liaise with the appellant to exclude information already provided to him by the OPW from the scope of this request or to invoke the provisions of article 7(3) of the AIE Regulations if, for example, information within the scope of the request held by or for it is already available to the public in another form or manner that is easily accessible.
38. The Department must ensure however that its fresh consideration of the request is carried out in accordance with the requirements of the AIE Regulations and the AIE Directive. This should include, at a minimum, the carrying out of further searches which account for the possibility that information relating to the proposed works at Lough Funshinagh which may not refer specifically to “Lough Funshinagh” may be held by or for the Department, the possibility that information might be held by the Minister’s Office and/or the Information Officers for the Minister and Minister of State referred to in the Department’s Record Management Policy and the possibility that information may be held by the Minister of State at the Department with responsibility for the OPW for the Minister of Public Expenditure and Reform.
39. If no additional information is retrieved as a result of those searches, the Department should write to the appellant advising him of this and setting out the steps taken by it in conducting those searches and the basis for any conclusions reached with regard to information held by the Minister of State at the Department with responsibility for the OPW.
40. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision and direct it to engage in a fresh consideration of the appellant’s request.
41. 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.
Ger Deering, Commissioner for Environmental Information