Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139343-V1F5H1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing the appellant’s request and whether the Council had taken adequate steps in an effort to identify all relevant information and in providing partial information only in the case of one of the records provided
14 March 2024
1. On 2 March 2023, the appellant made a request to the Council under the AIE Regulations seeking a report issued by the CEO of the Council to An Bord Pleanála; information on a hydrogeologist employed by or consulted by the Council; and details of lobbying by a specified company or its agents.
2. On 6 March 2023, the Council provided a copy of the CEO’s report to An Bord Pleanála to the appellant’s legal representatives. In its decision of 23 March 2023, the Council informed the appellant that information on the hydrogeologist was available in the report provided. In respect of the queries on lobbying, it referred the appellant to the Register of Lobbying (www.lobbying.ie) maintained by the Standards in Public Office Commission.
3. On 19 April 2023, the appellant sought an internal review of this decision.
4. On 10 May 2023, the Council issued an internal review in which it provided copies of an emails from the relevant company sent to all 40 members of the council, and one sent to 6 specified members.
5. The appellant appealed to this Office on 16 June 2023. It stated that its reason for appeal was that it was unhappy with the failure of the Council to provide information in relation to points 5, 6 and 7 of its request of 2 March 2023. These were the requests relating to lobbying.
6. This office received submissions from both the appellant and the Council on 14 July 2023.
7. 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 Limerick City and County Council. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner is to review a public authority’s internal review decision and to affirm, annul or vary it. The scope of the Commissioner’s remit is limited to this decision-making process. In this appeal, the appellant’s internal review request was restricted to parts 5, 6 and 7 of the request. Accordingly, these parts of the request were dealt with in the internal review decision and my review is limited to those parts.
10. This review concerns whether the Council was justified in refusing access to environmental information on lobbying on the grounds that the information requested was not held by or for the authority concerned in the meaning of art. 7(5) of the Regulations and whether the Council gave adequate reasons for the redactions of individuals’ names within the records provided.
11. There were three questions in the AIE Request which queried whether members of the Council or Council staff were lobbied by the Cloncarragh Investments Limited or named agents of that company.
12. On internal review, the Council provided the appellant with samples of emails from a representative of Cloncarragh Investments Ltd to:
a. All 40 members of the Council, sent on 16 April 2021 @ 21.27 (withdrawn)
b. All 40 members of the Council, sent on 16 April 2021 @ 21.45
c. All 6 members of the Council representing the local electoral area of Limerick City West, sent on 19 May 2021
These emails redacted the names of employees or agents of Cloncarragh Investments Ltd.
13. On 16 May 2023, the appellant made a request for clarification, seeking copies of emails to all councillors, rather than merely a sample. They asked if any of the councillors provided responses. It also asked that the details be unredacted.
14. On 22 May 2023, the Council responded to the request for clarification in which it relied on article 8(a)(i) not to release the redacted information.
15. On 9 June 2023, the appellant appealed to this Office.
16. I have read the submissions of both parties. The submissions of the Council do not engage with the AIE Regulations. The submissions do not approach the request within the required actions on request in article 7 nor do they frame the reasons for refusing to provide the information requested within the exemptions under article 8 or 9 of the AIE Regulations. In relying on the exemption for personal information in article 8(a)(i), the Council did not set out how article 8(a)(i) in fact applied to the information sought, and did not consider the public interest test in article 10.
17. In respect of query 5, the Council submitted that searching for lobbying beyond any note on the planning file would be a very broad request, as it would involve liaising with 40 members of staff to determine if any of them held records falling with the scope of the request: the chief executive, 8 directors of service, and 31 staff of the planning department. However, it would seem reasonable to suggest that such a request could be made in a single email sent to all staff identified as relevant, or at most a small number of emails grouped according to grade or division.
18. The respect of queries 6 and 7, the Council similarly submitted searches would have involved liaising with all 40 councillors to determine if any of them held records falling within the scope of the request. Similarly, it would appear that this could have been achieved through a single email to all councillors.
19. The Council did not give reasons to explain why the processes in contacting the members and staff of the Council was so onerous that the AIE request could not be processed. The members and staff in question formed pre-existing sets that Council staff would need to contact to arrange meetings or to send the agenda or minutes before meetings. Therefore, no adequate reason was given to explain why this task could not be carried out.
20. The Council is subject to a duty to provide reasons for its decisions. This arises, not only by virtue of articles 7(4) and 11(4) of the AIE Regulations, but also as a core principle of administrative law and a fundamental element of constitutional justice. The courts and the AIE Regulations make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal (see, for example, Balz v An Bórd Pleanála [2019] IESC 90). This duty arises so that a requester can take a view as to whether they consider the position of the public authority to be justified, or whether they wish to exercise the entitlement to have that position reviewed. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
21. The searches that would constitute an adequate, reasonable and appropriate response to fulfil an AIE request are specific to each request. In this instance, the Council did not make any adequate searches, relying on the volume of the request to avoid doing so. The Council did not invoke any provision of the AIE Regulations to support that claim. I am not satisfied that the Council has carried out reasonable and appropriate searches to identify and retrieve the environmental information relevant to this request.
22. Article 9(2)(a) permits a public authority to refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision was not explicitly invoked by the Council, but having considered the decision-making records and the submissions made in this appeal, I am not satisfied that the Council have shown that article 9(2)(a) would apply to this request. If the Council wishes to rely on article 9(2)(a) it should bear in mind the findings of the Court of Justice of the European Union (CJEU) in Verein für Konsumenteninformation v Commission ( Case T-2/03 ), at paragraphs 101–115, which suggest that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on a public authority to demonstrate the unreasonableness of the task entailed by the request. If a public authority wishes to rely on the manifestly unreasonable nature of a request to refuse all or part of that request, it should be in a position to clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
23. In the case of one record provided by the Council to the appellant, the name of the individual within Clancaragh Investments Limited who issued correspondence on 29 May 2023 was redacted. The Council justified this with reference to the provision within article 8(a)(i) of the Regulations (referred to in correspondence with the appellant and in submissions to this Office as article 7). This provision provides that,
“A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information—
(a) would adversely affect—
(i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law …”
24. The Council did not provide any adequate reasons to explain why this article applied to this record, nor did it weigh the public interest served by disclosure against the interest served by refusal, interpreting the grounds for refusal on a restrictive basis having regard to the public interest served by disclosure, having regard to article 10(3) and 10(4) of the Regulations.
25. In light of the above, I annul the internal review decision of the Council. The legal effect of this decision to annul the internal review decision made on 10 May 2023 is that that the Council must issue a new internal review decision to the appellant in respect of parts 5, 6 and 7 of the appellant’s request.
26. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Council’s internal review decision. A new internal review process should be carried out under article 11 of the AIE Regulations.
27. 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 Commissioner for Environmental Information