Cinneadh
Right to Know CLG and An Bord Pleanála
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-138852-B7L5N8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-138852-B7L5N8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether ABP’s decision under articles 7(3) and 15(1) of the AIE Regulations on the appellant’s request for certain information relevant to an identified case file was justified
11 October 2024
Background
1. On 29 March 2023, the appellant submitted an AIE request to ABP seeking access to “an electronic copy of the file for case no 313210 ( https://www.pleanala.ie/en-ie/case/313210 ), noting that “[a]ny documents that have already been uploaded to the Board’s website can be omitted.” It further stated that it would like to receive the information in electronic format by file transfer.
2. On 5 April 2023, ABP issued its original decision, wherein it referred to articles 7(3) and 15(1) of the AIE Regulations and stated:
“…the information requested is already available to the public in another manner that [ABP] deems reasonable and easily accessible in line with section 7(3) of the AIE regulations. The other manner is via our public access service. Our public access team facilitate requests for decided case file documents such as 313210 which you requested, as these are already in the public domain. This team interface with our archival service as such are positioned to provide you the information requested in the most expedient manner.”
Please note with the public access service, you can avail of access to the case files at your own convenience as such. The public access team will charge an associated fee enabled under section 15(1) of the AIE Regulations for scanning or copying, details of fees are laid out in our public access guide, should you wish to obtain copies of such documents. Link to An Bord Pleanála’s public access guide: https://www.pleanala.ie/getmedia/e13dff70-cf8b-44f9- b3aa-1d955ef41d6f/Public-Access-Guide-EN.pdf
Further communication can be directed to public access who can assist you further on the below email, or if you wish us to forward your query please let us know by reply. Email: Publicaccess@pleanala.ie”
3. The appellant responded to the AIE Team who issued the original decision and also sent that correspondence to the Public Access Team, stating:
Can you clarify whether your email is a refusal to provide an electronic copy of the file because it is not at all clear from your email how the request is going to be handled. Regulation 7(3) requires [ABP] to provide the information in the form and manner requested - is this going to happen? If so when can we expect to receive the file? It makes no difference to us who in [ABP] provides us the information, so it is up to you to make that arrangement. There is a reference to charges - can you tell us how much they are? We don't think you can charge for electronic access. If the request is being refused under Regulation 7(3), please arrange an internal review.
4. The AIE Team (cc’ing the Public Access Team) replied to the appellant, stating:
“…we have granted the request and ABP can create an electronic copy of the file to provide you. I have forwarded your request to my colleagues in public access who will be in touch with regards to your query on the related fee. Alternatlively [sic] once they have retrieved the physical file to facilitate your request, it is also possible for public access to arrange for you to view the file at our offices although I note that your preference is for an electronic copy of that file to be produced and provided.”
5. On 6 April 2023, the appellant responded to the AIE Team (cc’ing the Public Access Team), stating:
“Thank you[.] The request isn't granted until you have told us what the fee is and we have actually received the information. So we look forward to hearing from your colleagues as soon as possible, in the meantime the request remains pending.”
6. On 11 April 2023, the Public Access Team wrote to the appellant, stating:
“I have copied this submission onto a CD copy for you for case number ABP 313268 and ABP 313210, the cost of this will be 12 euro (6 euro for each CD). If you wish to proceed with payment, please arrange a bank transfer [details provided]. In the meantime, if you could fill out and return by email the declaration form attached to this email, that would be great.”
7. The appellant responded to the Public Access Team, stating:
“In order to avoid the charge for the CD, R2K wishes to receive to information by file transfer as was originally requested. We think it is unreasonable to charge for a CD when a free option is available. In R2K's experience most authorities have access to an electronic file transfer system but if ABP doesn't we can provide an upload link for you to use. R2K declines to fill out any forms since they are not allowed under AIE.”
8. On 29 April 2023, the appellant wrote to the AIE Team and sought an internal review “of the refusal of the request for an electronic copy of file 313210 on the basis of a refusal to provide the information by file transfer so as to avoid the €6 fee and for an unlawful request to sign a waiver form.”
9. On 26 May 2023, the AIE Team issued its internal review decision, wherein it stated that it was affirming its original decision. ABP noted that the appellant’s request concerned an electronic copy of a case file ABP-313210-22, which concerned 10 year planning permission for construction of 817 number residential units (377 number houses, 440 number apartments), childcare facilities and associated site works in the townlands of Hampton Demesne, Kilsough North and Balbriggan, Balbriggan, Co. Dublin for the Land Development Agency. ABP stated that its decision on the case was made on 16 March 2023 and, in accordance with section 146 of the Planning and Development Act 2000 (as amended) (the PDA), the file is available for public inspection and copies of documents from the case can be requested at the ABP offices or through its Public Access Service.
10. ABP referred to articles 7(3)(a)(i) and (ii) of the AIE Regulations and reiterated:
“[i]n accordance with article 7(3)(a)(i) above public access to this case file is already available to you under section 146 of the [PDA] as amended, and therefore you do not need to use the provisions of the AIE Regulations to request this documentation when it is already available via our Public Access Service.”
11. ABP noted that the Public Access Team had been in touch with the appellant in relation to the processing of the request. ABP referred, in particular, to the correspondence between the Public Access Team and the appellant on 11 April 2023, commenting:
“You state in your email that you wish to ‘avoid the charge’ for the CD and state that there is ‘a free option available.’ You made your original request for access to the case file under the AIE Regulations. Please note that charges for access to environmental information are provided for under AIE Regulations, relevant extract as follows [text of article 15(1)(a) – (d) of the AIE Regulations provided].”
12. ABP stated that, under its Public Access Service, it charges for copying documents and extracts from documents from decided case files as provided for under section 146(6) of the PDA which, it noted, states “copies of the documents and of extracts from such documents shall be made available for purchase at the offices of the Board, or such other places as the Board may determine, for a fee not exceeding the reasonable cost of making the copy.” It outlined that in the appellant’s case “the charge for copying documentation from the case file ABP-313210-22 to a CD is €6. This charge is considered reasonable.” ABP made the following further comments:
The work of [ABP] involves paper-based files. Elements of the process in some case types may be received electronically, but the official record of a case before [ABP] is the paper-based file and that is why it is not a viable option for the Board to use electronic transfer tools for providing access to documentation. The only free option for accessing case files, under both Section 146 of the [PDA and Article 15(1) of the AIE Regulations is to examine the case file in situ.
The charges for providing copies of documents under section 146 of the [PDA], or for providing access to information on the environment under article 15(1)(a) of the AIE Regulations…, are one and the same, see link to charges: [external-link https://www.pleanala.ie/en-IE/Fees/Fees-Access-to-information-services-charges#PublicAccess | Fees: Access to information services charges | An Bord Pleanála (pleanala.ie) ]
13. ABP reiterated that it was affirming its original decision, “as the decision was in in accordance with the provisions of Article 7(3) and Article 15(1) of the AIE Regulations and the provisions of section 146 of the PDA.”
14. The appellant submitted an appeal to this Office on 29 May 2023.
15. 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 ABP and the appellant as outlined above and to correspondence between this Office and both ABP and the appellant on the matter. 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)
16. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
17. 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.
18. The scope of this review concerns whether ABP’s decision under articles 7(3) and 15(1) of the AIE Regulations on the appellant’s request for certain information relevant to an identified casefile was justified.
19. I note that ABP’s internal review decision included the following section “Application for Review of Decision to the Information Commissioner” wherein it stated:
“In the event that you wish to make an application to the Information Commissioner for a review of this decision, you can do so by corresponding with the Office of the Information Commissioner, by email or online. You should include a fee if one is payable for processing the application for review. You should make your application within 6 months from the date of this notification. However, the making of a late application may be permitted in appropriate circumstances.”
20. The right of appeal set out in ABP’s internal review decision refers to an appeal to the Office of the Information Commissioner under the Freedom of Information Act 2014, rather than an appeal to the Office of the Commissioner for Environmental Information under the AIE Regulations. These are distinct statutory regimes which differ in a number of respects. In particular, the timeframes vary greatly between the two regimes.
21. Indeed, under article 12(4)(a) of the AIE Regulations, an appeal to this Office must be initiated not later than one month after the decision of the public authority under article 11(3) (generally the internal review decision) has been received by, or was required to be notified to, the applicant/appellant. This contrasts significantly with the 6-month appeal period provided for in the FOI regime which is referred to in ABP’s internal review decision. While it is open to this Office, under article 12(4)(b) of the AIE Regulations, to extend the time limit for initiating an appeal where, in the circumstances of a particular case, it is reasonable to do so, ABP should ensure that it complies with its obligations under article 11(4)(b) of the Regulations to provide the correct details to requesters on their right of appeal under the AIE Regulations.
22. I also wish to note that it is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal.
Positions of the Parties
23. The general thrust of the appellant’s position is that ABP’s decision under articles 7(3) and 15(1) of the AIE Regulations was not justified. The appellant provided detailed submissions to this Office in support of its position. While I do not propose to repeat them in full here, I can confirm that I have had regard to them. The appellant concluded that ABP’s decision was unlawful because “it unlawfully attempted to charge a fee” and “unlawfully attempted to impose conditions on access via its ‘declaration form’.”
24. ABP’s original and internal review decisions relied on article 7(3) of the AIE Regulations in directing the appellant’s request to its Public Access Service for access to the information sought and also referred to fees to be charged under article 15(1) of the AIE Regulations. In its submissions to this Office, ABP provided further details in support of its decisions, which I have summarised below:
• ABP gave an overview of how it facilitates access to decided case files, as follows:
(i) ABP stated that its practice is to keep all records relating to a planning case within a single case file. ABP stated that after it makes its decision, the entire decided case file is retained. ABP noted that the most recent case files are held onsite and older case files are held offsite.
(ii) ABP stated that in accordance with the PDA, the case file becomes a matter of public record three days after it makes a decision. ABP explained that the Board Order, Board Direction, and Inspectors Report of a case are published on its website www.pleanala.ie on the individual case page.
(iii) ABP stated that its Public Access Service facilitates the public viewing of decided case files and the provision of copies of documents from those case files, where required. It stated that this is in accordance with section 146(5) of the PDA. It also referred to section 146(6) of the PDA.
(iv) ABP stated that it takes measures to make information available progressively by electronic means, however with “due consideration to the Planning and Development Act 2000, the physical paper file remains the official record.” It reiterated that its Public Access Service facilitates members of the public to view and make copies of documents on decided case files.
(v) ABP explained that the Public Access Service is available at 64 Marlborough Street, Monday-Friday from 9:15 to 17:30, excluding bank holidays.
(vi) ABP stated that the case files “typically range in size tens to hundreds of pages dependant on case type and nature. The implication here is every time access is facilitated for requests to duplicate partially/fully the file via photocopying or scanning for electronic means, the actual physical file is handled by administrative staff to ensure any modifications or additions on the file at that juncture are captured in the duplications.”
(vii) ABP stated that no fee applies when viewing the physical case files at its offices on weekdays. ABP noted that, when viewing the physical case files, members of the public can take digital photographs of any document on a case file produced by or submitted to ABP to create a personal electronic copy.
(viii) ABP stated that certain fees apply when requesting copies of documents on decided case files.
• ABP explained that when a request to view a decided case file is received, the public access team will retrieve the physical file from its onsite storage, or, if it is more than approximately 4-5 years old, its off-site storage facility. ABP outlined that it does not generally charge for file retrieval, unless the file is more than 5 years old and it is needed within 24 hours, which requires a special courier service.
• ABP explained that it charges a fee where a request is made for material to be copied from the physical case file.
• ABP stated that its charges are displayed on its website in its fees guide and public access guide.
• ABP then went on to refer to the particular matter at issue, as follows:
(i) ABP explained that its decision on planning case ABP-313210-22 was made on 16 March 2023 and, in accordance with the PDA the file is available for public inspection, and copies of documents can be requested at the offices of ABP or by contacting its Public Access Service.
(ii) ABP indicated that its original decision explained that the case file sought was already available for inspection and purchase via its Public Access Service. ABP noted that it had referred to article 7(3) of the AIE Regulations and stated that the appellant “was not refused access to the case file nor were they refused an electronic copy.” It stated that the appellant was informed that the Public Access team would log the request and would be in touch with him with regard to the particulars of proceeding the request.
(iii) ABP further noted that its internal review decision affirmed its original decision under article 7(3) of the AIE Regulations. It also noted that the appellant was also informed that the Public Access Team, using its fees guide, collated a fee of €6 for providing a scanned copy of the information sought. It reiterated that ABP charges for all public access requests and submitted that the fees are charged in accordance with the relevant planning legislation and its fees guide.
(iv) ABP referred to and provided a copy of the “Declaration Form” (the waiver form), which it asked the appellant to sign, noting:
“Although all of ABP’s decided case files become a matter of public record three days after the decision is made, they generally contain a significant amount of personal data. ABP feels that it has a duty of care to maintain a record of any parties who have accessed the case file in order to fulfil its obligations under GDPR. It is for this reason that any persons viewing a case file are asked to complete a “Declaration Form”…The remainder of the information on the form is there to inform the person of ABP’s policies regarding photographing of the file and the use of copies of documents which may be covered under Copyright Law.”
(v) ABP stated that it is of the opinion that access to the casefile in the manner proposed through its Public Access service is reasonable and in accordance with article 7(3) of the AIE Regulations.
(vi) ABP stated that charges are incurred where there is a request for copies of documentation from the casefile. It reiterated that the file must be physically retrieved, and a scanned digital file or hard copy must be manually prepared by the Public Service Team. It stated that in charging fees for providing hard or scanned copies of documentation, it invokes section 146(6) of the PDA. It also reiterated that the Public Access Team, using its fees guide, collated a fee of €6 for copying documentation from the case file ABP-313210-22 to a CD. It again highlighted that its position that the charging of a fee is reasonable and in accordance with both [a]rticle 15 of the AIE Regulations, section146(6) of the PDA, and its fees guide.
25. During the course of this review, the Investigator wrote to ABP and referred to articles 7(1) and 7(3) of the AIE Regulations. She noted that it was her understanding that in relying on article 7(3) and in giving access to relevant information by way of its Public Access Service, ABP required the appellant to sign the Declaration Form and accept all of the terms contained therein. She also noted the appellant’s contention that ABP cannot channel requests into a public access procedure that does not comply with the AIE Regulations under the pretext of article 7(3) of the AIE Regulations. She further outlined that it was the general thrust of the appellant’s position that ABP’s decision under article 7(3) of the AIE Regulations is not justified in circumstances where, in being given access to relevant information through the Public Access Service, it must accept the terms contained in the Declaration Form.
26. In response, ABP commented that article 7(1) of the AIE Regulations “mandates that public authorities make environmental information available upon request”. It stated that in its efforts to adhere to this requirement, it provides access to environmental information through various mechanisms, including its Public Access Service. It noted that article 7(3)(a) of the AIE Regulations allows a public authority to provide access to environmental information in a form or manner different from that requested if the information is already accessible to the public in another form or if providing it in the requested form would be unreasonable. It stated that its website offers a key subset of documents such as the Inspector’s Report, Board Direction, and Board Order, which can be downloaded for free.
27. ABP stated that each AIE request received is assessed on its own merits. It outlined that for requests that seek records on decided public case files, it directs these requests to its Public Access Service. It stated that the public access team searches and retrieves files, interfaces with its archival facilities, photocopies files, and provides the requester with the requested documents in a timely manner. It explained that this ensures that requests for comprehensive case files, which may include a large volume of documents, are managed efficiently. It commented that this approach allows it to maintain a structured system for providing access while conserving resources and avoiding duplication of efforts.
28. Regarding the Declaration Form, ABP stated that it plays an important role in its record-keeping efforts while ensuring adherence to statutory obligations and safeguarding the confidentiality of information accessible through its Public Access Service. It stated that “[t]his is especially important given the presence of personal data and copyrighted materials within case files, which include sensitive personal information such as names, and addresses of parties to a case, in addition to materials protected under the Copyright Act such as maps. By asking members of the public to complete the Declaration Form, we ensure adherence to both the Copyright and Related Rights Act and Data Protection Regulations, thereby informing individuals of their responsibilities when accessing these files.”
29. I note that ABP acknowledged this Office’s concerns regarding the declaration form stating, “I would like to clarify that signing the Declaration Form is not, and has never been, a prerequisite for accessing case files. In practice, there have been instances where requestors have opted not to sign the form yet were still provided with the information they sought. Our commitment remains firmly in upholding the rights of requestors and ensuring transparency throughout our processes. In light of your feedback, we are reviewing the wording of the Declaration Form to prevent any potential misinterpretation and to ensure that it fully aligns with the principles of the AIE Directive, particularly regarding the importance of unrestricted public access to environmental information. It is crucial to emphasize that An Bord Pleanála has never restricted access to case files based on whether or not a requestor signs this form; access has always been granted regardless of the decision to sign.”
30. ABP explained that the Declaration Form is a standard procedure within its Public Access Service aimed at ensuring users comply with legal obligations, including those related to copyright and data protection. It referred to section 74(4) of the Copyright and Related Rights Act, 2000, which, it noted, states:
“Material may not be provided under this section unless the person granting access to the material has obtained from the person requesting the material a declaration, in such form as may be prescribed, indicating that the material is required for the sole purpose of enabling the material to be inspected at another time or place or to otherwise facilitate the exercise of the right of public inspection.”
31. ABP stated it facilitates the right of public inspection as is a statutory obligation of ABP under section 146 of the PDA, which, it noted, states: “The documents relating to any appeal or referral or to a decision of the Board under section 175 or Part XIV shall be made available at the offices of the Board for inspection by members of the public”
32. ABP went on to note that the Inspectors Report, Board Order, and Direction are published on case pages. It stated that these are documents that have been created by ABP and are not subject to restriction, they are published online to fulfil the requirements of section 146 of the PDA.
33. ABP noted that Declaration form includes terms that: acknowledge potential copyright restrictions, ensure responsible use of personal data, and prohibit unauthorised sharing or publication of information. It reiterated that these measures are in place to protect sensitive information and adhere to legal requirements, “rather than to restrict access improperly”, and the Declaration Form serves as a reminder to users of their responsibilities when handling the information provided.
34. ABP stated that while it noted the appellant had raised concerns that its use of the Declaration Form and the Public Access Service does not comply with the AIE Regulations, it is its position that reliance on article 7(3) is justified as the information is accessible via its Public Access Service in a manner that is reasonable and already available to the public. It stated that the Public Access Service is a practical and effective method for providing comprehensive access to its case files, and the Declaration Form is a necessary part of ensuring compliance with legal standards.
35. ABP stated that it assesses requests on a case by case basis. It outlined that it aims to accommodate reasonable requests in line with the AIE Regulations and it has systems in place to handle special cases or exemptions when appropriate. It noted that it is committed to transparency in its processes. It commented that the terms outlined in its Declaration Form are clearly stated and aim to balance access to information with necessary safeguards. It reiterated that these terms are not intended to act as barriers to access but rather to ensure information is handled responsibly. It submitted that its current procedures provide a fair and reasonable method for public access to environmental information while ensuring compliance with legal and regulatory requirements.
36. In further correspondence, the Investigator sought additional information from ABP. The Investigator’s queries and ABP’s responses are summarised below.
a. The Investigator asked whether, notwithstanding that the hard copy case file is considered to be the “official file”, information relating to case files is only held in hard copy or if it is also held electronically. She also asked that if the information is also held electronically for a description of the relevant systems/databases etc. In response, ABP noted that case 313210 relates to a Strategic Housing Development (SHD). It stated that the format “is subject to the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended, the Planning and Development (Strategic Housing Development) Regulations 2017 and the Planning and Development (Strategic Infrastructure) Act 2006, and the Planning and Development Act 2000, as amended”. It went on to list the following regarding the relevant records the management of those records:
i. “Application records: hard copy and soft copy held via an internal SharePoint site.
ii. Submission/observation records: hard copy and soft copy held via an internal SharePoint site.
iii. Received correspondence: Hard copy only.
iv. Issued correspondence: Hard copy only.
v. Other documents (forms, memos, etc.): Hard copy only. Letters are generated unsigned in soft copy
vi. Inspectors Report: Hard copy and on decision soft copy via website www.pleanala.ie
vii. Board Order and Direction: Hard copy and on decision soft copy via website www.pleanala.ie .”
b. The Investigator asked whether, notwithstanding that, the hard copy case file is considered to be the “official file”, ABP could confirm if any of the information sought is held electronically by ABP. She asked ABP, in doing so, to identify which information is/is not held electronically and to clarify where the information is held electronically (e.g. what systems/databases, etc). In response, ABP referred back to points (i), (ii), (iii), (iv), and (v) of the list made at paragraph (a) above.
c. The Investigator asked ABP to explain how information is received by it regarding case files. She asked whether information can only be sent to ABP in hard copy, or if it can also be sent electronically (she noted that ABP’s website indicates, for example, that observations on LRD planning appeals can be made online)? She queried whether, if information is received in hard copy, it is also scanned onto an electronic system and, if information is received electronically, where that information is received and stored. In response ABP stated the following:
“Members of the public can submit observations online via our website, a new process available for all case types where a fee is required. For cases without a fee, observations may be submitted via email. Additionally, hard copy observations can be sent by post or delivered directly to our offices.
For SHD and SID case types, when hard copy observations are received, they are scanned to create electronic copies, which are then stored in the SharePoint site. The original hard copies are retained as part of the physical case file. Documents received electronically, whether through online submission or email, are directly uploaded to SharePoint as well as maintained on the physical file. This approach ensures that both electronic and hard copy versions are available and facilitates accessibility for all case files. The LRD and appeals section do not use SharePoint for this purpose, observations are printed and maintained on a hard copy case file.
Case type: Strategic Housing Development (SHD), Strategic Infrastructure Development (SID)
• The Application records are received via hard copy in person/post and soft copy via USB and subsequently stored on an internal SharePoint site.
• Any submissions/observations received are in hard copy in person/post and/or soft copy, regardless of means are also stored electronically via an internal SharePoint site.
Case type: Large Residential Development (LRD) and appeals
• The Appeal records are received via Hard copy only in person/post.
• Any submissions/observations can be received via hard copy in person/post or soft copy via our online portal. Online copies are printed out and placed on hard the physical case file.”
d. The Investigator asked ABP to explain how information is given to the Board when considering a case file – she asked whether this is done electronically or if each member of the Board is given a hard copy file. In response, ABP stated “[t]here is only one physical file for each case, which is provided to the lead Board Member assigned to the case. This lead Board Member is responsible for presenting the hard copy file at the Board meeting.”
e. The Investigator asked whether her understanding that the €6 charge indicated related to the provision of a CD was correct and why it was necessary to prepare a CD and it was not possible to provide the information in another way electronically? In response, ABP stated:
“There is a €6.00 charge for a CD or USB per the details on our website relating to public access service charges: https://www.pleanala.ie/en-ie/viewing-a-decided-case-file-public-access/public-access-servicecharges . The delivery of very large files via email is not feasible without splitting the contents into multiple emails, given inherent limits on email maximum size of typically 30MB making it time-consuming, as it requires ensuring that all records are accurately transmitted and properly received. To address this, we offer CDs and USBs as a more practical solution for delivering large case files.
Please note we are currently working to improve the availability of electronic documents and have recently implemented ShareFile, a new facility that allows our public access team to share electronic files more easily.”
f. The Investigator provided details regarding this Office’s interpretation of article 7(3) of the AIE Regulations (discussed in further detail in the Analysis and Findings section below). She also outlined her view that in circumstances where the appellant must accept the terms and conditions contained in ABP’s Declaration Form in advance of providing information through the public access service, she was intending to recommend to the Commissioner that a finding is made that ABP’s decision under article 7(3) of the AIE Regulations was not justified. In response ABP stated:
“…signing the Declaration Form is not, and has never been, a prerequisite for accessing case files. In practice, there have been instances where requestors have opted not to sign the form yet were still provided with the information they sought. Our commitment remains firmly in upholding the rights of requestors and ensuring transparency throughout our processes.
In light of your feedback, we are reviewing the wording of the Declaration Form to prevent any potential misinterpretation and to ensure that it fully aligns with the principles of the AIE Directive, particularly regarding the importance of unrestricted public access to environmental information. It is crucial to emphasize that An Bord Pleanála has never restricted access to case files based on whether or not a requestor signs this form; access has always been granted regardless of the decision to sign.”
37. Article 6(1)(e) of the AIE Regulations provides that if an applicant desires access to environmental information in a particular manner, the request shall specify the form or manner of access desired. In this case, the appellant requested access to an electronic copy of certain information relevant to an identified case file, ideally by electronic transfer. Accordingly, I am satisfied that the appellant specified the form and manner of access desired in accordance with article 6(1)(e) of the AIE Regulations.
38. Article 7(1) of the AIE Regulations provides a public authority shall, notwithstanding any other statutory provision and subject only to the AIE Regulations, make available environmental information that is held by or for them on request. Article 7(3)(a) of the AIE Regulations provides that 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. Article 7(3)(b) provides that 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.
39. I wish to highlight that article 7(3) of the AIE Regulations can only be considered where a public authority has identified relevant information held by or for it, determined that information should properly be released (i.e. that no exemption provision in article 8 or 9 of the AIE Regulations (subject to article 10) applies), and has then decided to give access to that information other than in the form or manner requested.
40. Article 7(3)(a) of the AIE Regulations transposes part of Article 3(4) of the AIE Directive, which provides that where an applicant requests a public authority to make environmental information available in a specific form or format (including in the form of copies), the public authority shall make it so available unless (a) it is already publicly available in another form or format which is easily accessible by applicants or (b) it is reasonable for the public authority to make it available in another form or format, in which case reasons shall be given for making it available in that form or format.
41. Article 3(4) of the AIE Directive goes on to state “[f]or the purposes of this paragraph, public authorities shall make all reasonable efforts to maintain environmental information held by or for them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means”. This wording, which is reflective of Article 5(3) of the Aarhus Convention, was not transposed by article 7(3) of the AIE Regulations. However, I do note that article 5(1)(b) of the AIE Regulations states that a public authority shall “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”.
42. It is important to note that it is not within the Commissioner’s powers to examine the implementation of article 5(1)(b) of the AIE Regulations by public authorities generally. However, a public authority’s implementation of article 5(1)(b) of the AIE Regulations may impact its ability to rely on article 7(3) of the AIE Regulations. In cases involving article 7(3) of the AIE Regulations this Office may consider whether the particular information requested is the kind of environmental information that one would expect to be maintained in a manner that is readily reproducible and accessible electronically. Greater implementation of article 5(1)(b) of the AIE Regulations by a public authority, may increase the likelihood that article 7(3) of the AIE Regulations can be relied upon or that information can be obtained by members of the public without the need to submit an AIE Request. It is also of note that, while a public authority can only engage article 7(3) of the AIE Regulations where it has been determined that the information should properly be released under the AIE Regulations, the AIE Regulations are just one access regime and there is nothing in the AIE Regulations which precludes a public authority from providing access to information outside the regime, even if access would be denied as a result of one of the exemptions in the AIE Regulations.
43. In circumstances where a public authority wishes to charge a fee in response to an AIE request, this must be done in accordance with article 15 of the AIE Regulations, which provides at paragraphs (1) and (2):
(1) “(a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
(b) Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to Article 5(1)(d).
(c) Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested.
(d) Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2), for the provision of such copies.
(2) Where a public authority charges a fee pursuant to sub-article (1), it shall make available to the public a list of fees charged, information on how they are calculated and the circumstances under which they may be waived.”
44. Article 15 of the AIE Regulations transposes Article 5 of the AIE Directive, which provides:
(1) Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.
(2) Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.
(3) Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.
45. I also wish to highlight that article 15(1) of the AIE Regulations can only be considered where a public authority has identified relevant information held by or for it, determined that information should properly be released, (if applicable, decided that access to that information should be given other than in any form or manner requested in accordance with article 7(3)), and has then decided to charge a fee. It is important to note that in circumstances where another statutory provision provides for an alternative charging mechanism, any fees for making available information sought under the AIE Regulations must also be in accordance with article 15 of the AIE Regulations. In such circumstances, it is for a public authority to show how the alternative charging mechanism also satisfies article 15 of the AIE Regulations in the particular case.
46. The appellant in this case requested access to an electronic copy of certain information relevant to an identified case file, ideally by electronic transfer. In its original and internal review decisions, ABP relied on article 7(3) of the AIE Regulations to direct the appellant’s request to its Public Access Service. In its submissions to this Office, ABP further stated that it had neither refused to give access to the case file nor refused to provide an electronic copy to the appellant.
47. I note that ABP’s website, which is referred to in its submissions to this Office, contains a section that explains the Public Access Service and the procedure for viewing decided case files. Among other things, the website, as also indicated in ABP’s submissions, states that certain documents can be viewed and downloaded from ABP’s website for free – the Inspector’s Report, Board Direction, and Board Order. It also states that the full case file can be accessed through its Public Access Service, however this is subject to the acceptance of terms by way of a Declaration Form. The Declaration Form states that it needs “to be completed before a case file can be photocopied or photographed” and “does not apply to Inspector’s Report, Board Direction and Board Order.” The Public Access Guide , which is linked in ABP’s submissions to this Office, also states that the Declaration Form available on its website needs to be signed before viewing a file. I note ABP’s comments in its submissions to this Office that the signing of the Declaration form is not a pre-requisite for accessing case files and there have been instances where requesters “have opted not to sign the form yet were still provided with the information they sought”, that it is reviewing the Declaration Form “to prevent any potential misinterpretation and to ensure that it fully aligns with the principles of the AIE Directive, and that it “never restricted access to case files based on whether or not a requester signs [the Declaration Form]”. However, having regard to the information on ABP’s website regarding the manner in which the public access service operates (and its correspondence with the appellant), it would appear to me that in this case the appellant had no reason to doubt that the signing of the Declaration Form was required in order to receive electronic copies of the information sought. Furthermore, while ABP indicated that it was updating its terms, it provided no indication as to what those changes would be or when they would be implemented. I am satisfied that in this particular case ABP in relying on article 7(3) and in giving access to electronic copies of the relevant information by way of its Public Access Service, required the appellant to sign the Declaration Form.
48. Having examined the Declaration Form currently available on ABP’s website I note that it asks that the signatory confirms that they have read and consent to the following terms:
1. “I accept that photocopies or photographs from An Bord Pleanála case file with the above case number, are made available to me under section 146, subsections (5) and (6) of the Planning and Development Act 2000, as amended. They are or may be subject to copyright or related rights.
2. I accept that under section 74, Copyright and Related Rights Acts, as amended, material is provided to me by An Bord Pleanála for the purposes of inspection and no other use of the material may be made without the licence of the copyright owner.
3. I agree to the conditions set by An Bord Pleanála that I may photograph certain documents on the case file except plans, maps and other documents on which there are copyright restrictions or restrictions placed by An Bord Pleanála.
4. I accept not to copy, publish, share, upload, or make public by any means (this includes electronic means such as social media or internet) copies or photographs of documents on the case file provided to me for my personal inspection.
5. I understand that it is my responsibility under Data Protection legislation to make sure that any personal data contained in any case file which I view is used only for my own personal inspection. I will not use any personal data for any reason except for my own personal inspection. I will not use any personal data in a manner which could cause damage or distress to the subjects of the data.
6. I agree that the personal data that I gain access to will not be disclosed to any individual. I will make sure to protect from unauthorised disclosure to any party, any copies of material or notes which I may have during my inspection of the case file. When I no longer require the information in the copies or notes I have, I will dispose of the information in an appropriate manner.”
49. Although ABP stated that in directing the appellant’s request to its Public Access Service, it had neither refused to give access to the information relevant to the case file nor refused to provide an electronic copy to the appellant and, notwithstanding its recent comments regarding that it may not have been necessary for the appellant to sign the Declaration Form and it was updating its terms, I am satisfied, as noted above, that in this particular case ABP required the acceptance of terms prior to release of the electronic copy of the information relevant to the case file (separate to any fee also to be charged). ABP did not inform the appellant that he could “opt out” of signing the declaration form, as is alluded to in its correspondence. Having examined those terms, I note that release under the AIE Regulations is release to the world at large and access cannot be given subject to the acceptance of such terms, which include restrictions regarding the use and making public of the information concerned. Given the nature of the terms I would also like to recall the purpose of the AIE Regime as set out in Recital 1 of the AIE Directive, namely “increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.” A person who received environmental information on foot of a request must be free to circulate that to others who might have an interest in the information. I therefore find that ABP should not have required the appellant to sign the declaration form when granting him access to information under the AIE Regulations.
50. In circumstances where the appellant must accept the terms and conditions contained in the declaration form in advance of providing information through the Public Access Service, I cannot find that ABP’s decision under article 7(3) of the AIE Regulations was justified.
51. Turning to the matter of the fee charged for access to the information sought, ABP mentioned article 15 of the AIE Regulations in its original and internal review decisions, and the amount to be charged in its internal review decision and correspondence with the appellant outside the AIE decision-making process. I also note its comments:
• “the charge for copying documentation from the case file ABP-313210-22 to a CD is €6. This charge is considered reasonable.”
• The work of [ABP] involves paper-based files. Elements of the process in some case types may be received electronically, but the official record of a case before [ABP] is the paper-based file and that is why it is not a viable option for the Board to use electronic transfer tools for providing access to documentation. The only free option for accessing case files, under both Section 146 of the [PDA and Article 15(1) of the AIE Regulations is to examine the case file in situ.
• The charges for providing copies of documents under section 146 of the [PDA], or for providing access to information on the environment under article 15(1)(a) of the AIE Regulations…, are one and the same, see link to charges: [external-link https://www.pleanala.ie/en-IE/Fees/Fees-Access-to-information-services-charges#PublicAccess | Fees: Access to information services charges | An Bord Pleanála (pleanala.ie) ]”
52. However, if ABP was seeking to charge a fee under article 15 of the AIE Regulations, it should have, in addition to referring to article 15 of the AIE Regulations in its decisions, provided further reasons for same, showing, where relevant, how the charging mechanism also complied with the AIE Regulations. Article 15(2) of the AIE Regulations states that “Where a public authority charges a fee pursuant to sub-article (1), it shall make available to the public a list of fees charged, information on how they are calculated and the circumstances under which they may be waived.” I note that the ABP website states that information is made available after an AIE request “normal public access charges may apply”. I also note ABP’s submissions to this Office where it stated that there is a €6 charge for a CD or USB in accordance with its fees guide; that the use of CDs and USBs is a practical solution because the delivery of very large files via email is not feasible without splitting the contents into multiple emails, given inherent limits on email maximum size of typically 30MB making it time-consuming, as it requires ensuring that all records are accurately transmitted and properly received; and that it is currently working to improve the availability of electronic documents and has recently implemented ShareFile.
53. In his Opinion in case C-217/97 Commission v Germany in relation to Directive 90/313/EEC, the predecessor to the AIE Directive, Advocate General Fennelly, opined that the notion of what is “reasonable” must be interpreted in light of the general scheme and purpose of the Directive. In light of this, “the question of whether the charges for the supply of the information are 'reasonable’ must be judged from the perspective of the member of the public requesting the information, rather than from that of the public authority” (paragraph 23). His view was that, unlike most other categories of publicly held information, the likely cost will inevitably have a direct bearing on the extent to which the public will use the right of access. He considered that “requiring the individual seeker of information to bear what is effectively the entire cost of processing his request would amount to restricting the enjoyment of the right of access, in practice if not in law, to those who have a direct interest in the information, contrary to the clear exclusion of the need for such an interest” (paragraph 25). He also noted that “since access to environmental information is in the public interest, it follows that public authorities, and, ultimately, the general public through the State budget, should bear that part of the burden of making this information available which is represented by the time and effort of public officials” (paragraph 24). He was “of the opinion that Article 5 should be interpreted as allowing Member States to charge either a standard scale of fees, which need not be based directly on the direct costs, or a charge based directly on such costs” but that “in neither case may the fee or the charge exceed an amount which is equivalent to reasonable, direct costs, or be such as to permit the charging out of part of the cost and time of a public authority in performing a public duty” (paragraph 32).
54. In case C-71/14 East Sussex County Council v Information Commissioner (East Sussex) (see, in particular, paragraphs 27-45), the CJEU found that all of the factors on the basis of which the amount of the charge is calculated must relate to the actual costs of supplying the requested information. This may include the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, including the time spent on searching for the information and putting it in the form required, it stated: “the costs of ‘supplying’ environmental information which may be charged under Article 5(2) of Directive 2003/4 encompass not only postal and photocopying costs but also the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, which includes the time spent on searching for the information and putting it in the form required” (paragraph 39). In addition, the Court found that the expression “reasonable amount” in the AIE Directive does not include any amount that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information. The Court found that “in order to assess whether a charge … has a deterrent effect, account must be taken both of the economic situation of the person requesting the information and of the public interest in protection of the environment. That assessment cannot therefore relate solely to the person’s economic situation, but must also be based on an objective analysis of the amount of the charge. To that extent, the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable.” (paragraph 43). The comments of Advocate General Fennelly must be read in light of the decision in East Sussex, which clearly shows that authorities are permitted to take into account postal and photocopying costs, as well as the time spent on the search and retrieval of information and putting it in the form required when calculating its charge, however, the charge must not “in any event appear objectively unreasonable.”
55. Article 15(1) of the AIE Regulations makes it clear that the question of what is a reasonable fee must be approached having regard to the requirements of the AIE Directive. Article 3(5) of the AIE Directive requires Member States to ensure that “officials are required to support the public in seeking access to information” and that “the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised”. Article 7(1) of the AIE Directive seeks to ensure that public authorities are required “to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”.
56. With articles 7(1) and 3(5) of the AIE Directive in mind, it is clear that AIE requests of a general nature often are of a kind that one would expect to either be proactively published by the public authority or organised and maintained by the public authority in a manner that enables its easy dissemination on request. In such circumstances I do not think it would be reasonable to allow a public authority to rely on its own failure to adequately organise its information to justify the imposition of a charge on the appellant in respect of work which arguably would not have been required had proper document management arrangements been in place.
57. I also note that the Advocate General in East Sussex clarified that when calculating a fee for the supply of information, a public authority cannot pass on the costs of a failure to comply with other parts of the Directive to requestor, stating “Moreover, an authority may not rely on its failure to comply with its obligations under, for example, Articles 3 and 7 of Directive 2003/4 in order to justify charging an applicant under Article 5(2) because, for example, it is holding information as raw data and has not yet organised that information (as required) in a manner that renders access possible.”
58. Regarding the findings of the ACCC in ACCC/C/2017/147 and ACCC/C/2008/24, referred to by the appellant, I wish to note, by way of background, that the ACCC was established under Article 15 of the Aarhus Convention and serves as a compliance mechanism whereby Parties to the Convention or members of the public may, for example, bring a concern regarding the implementation of the Convention to the Committee for consideration. It is a non-confrontational, non-judicial and consultative mechanism established to review compliance by Parties to the Convention. While it is useful to refer to, the question before me when considering whether a fee is justified is whether the public authority in this appeal acted in accordance with article 5(2) of the Directive, and applied article 15(1) of the AIE Regulations correctly, and in deciding this I am bound by the relevant case law, including the judgment of East Sussex. I note, in particular, the comments of the ACCC at paragraphs 86 to 89 in ACCC/C/2017/147, including that charges “must not include the cost of the initial production, collection or acquisition of the information itself or any other indirect cost.” However, as mentioned above, the CJEU in East Sussex clearly stated that the charging for postal and photocopying costs, and the time spent on search and retrieval of records and putting it in the form required, is permitted. I am satisfied that there are circumstances where a fee can be charged for electronic access, including by CD, however that fee must be justified in each particular case.
59. Having regard to the above, while the fee in this case is low, I am not satisfied that ABP adequately justified the fee charged. It is not clear from either the decision-making records or from ABP’s submissions to this Office exactly how the fee of €6 for each CD was calculated or why the use of CDs was necessary. ABP did not explain to the requestor why a file transfer service could not be used, as requested. It is not clear how large the file requested is or how much had to be scanned. I note that ABP’s public access fees guide simply states that CDs have a cost of €6 a disc. ABP should ensure that it is clear to a requestor exactly how a fee is calculated, e.g. whether it relates to postal or photocopying costs, or whether it relates to the time spent by the staff of the public authority concerned on answering an individual request for information, which includes the time spent on searching for the information and putting it in the form required, as set out by the CJEU in East Sussex. Given that the appellant had requested an electronic copy of the file, ABP should also have explained to the appellant why the file in its entirety was not already available in electronic format and given a specific breakdown of the fee. I therefore find that the fee that ABP sought to charge was not justified under the AIE Regulations.
60. ABP should carefully consider whether the manner in which charges are calculated and imposed under by the Public Access Service is compliant with article 15 of the AIE regulations and in particular whether such charges are reasonable with regard to the Directive, as required by article 15(1) of the Regulations. In particular, ABP should consider whether all potential aspects of supplying information are set out in the schedule of charges. Finally, ABP should note the requirement in the AIE Regulations to provide information on the circumstances in which a charge may be levied or waived.
61. I consider that the most appropriate course of action to take at this stage is to annul ABP’s decision under article 7(3) of the AIE Regulations. In circumstances where ABP has made no submissions regarding the application of any of the exemption provisions provided for under the AIE Regulations, I direct ABP to release electronic copies of all the information relevant to the appellant’s request. For the sake of clarity, as I have also found that the fee charged was not justified, no fee should be charged for the release of this information.
62. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul ABP’s decision in this case. I direct ABP to release electronic copies of all of the information relevant to the appellant’s request.
63. 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