Cinneadh
Mr D and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-129105-D9Q2K4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-129105-D9Q2K4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was entitled to rely on article 7(3) of the AIE Regulations to provide the appellant with information requested in an alternative form or manner or on article 9(2)(a) of the Regulations to refuse the information requested
1. On 18 July 2022, the appellant requested the following information from the Department:
2. The Department issued its original decision on the request on 17 August 2022. It informed the appellant that the information he sought was available at https://www.gov.ie/en/publication/public-consultation-on-forestry/ . The decision then noted “article 7(3)(a)(i) of [the AIE Regulations] refers” before informing the appellant of his right to have the decision reviewed.
3. On 19 August 2022, the appellant sought an internal review of the original decision submitting that the Department had not provided him with reasons for the refusal of his request.
4. On 21 September 2022, the Department issued its internal review decision. The internal reviewer decided that “the decision made by the initial decision-maker should be varied”. However, the internal reviewer also sought to rely on article 7(3) of the AIE Regulations, finding that “the information…requested is already available to the public in another form or manner that is easily accessible” and that “the reason these records are being provided to you in this format is that the information requested is already available for viewing by members of the public on our website and it would place a detrimental effect on the business of the Department to undertake this task”.
5. The appellant appealed to this Office on 26 September 2022.
6. 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.
7. My review in this case is concerned with whether the Department is entitled to rely on article 7(3) of the AIE Regulations to provide access to information in an alternative form or manner to that requested by the appellant.
8. The Department also found, in its internal review decision, that providing the information in the form requested by the appellant would have a “detrimental effect on the business of the Department”. While the decision does not explicitly refer to article 9(2)(a) of the Regulations, this article provides grounds for refusal of a request where the request “is manifestly unreasonable having regard to the volume or range of information sought”. While it is not satisfactory for the Department to allude to the potential application of article 9(2)(a) without specifically referencing that article, I will consider, for completeness, whether that article would allow for refusal of the information requested as well as considering whether the Department is entitled to rely on article 7(3) to provide information to the appellant in an alternative form or manner to that requested. I consider that doing so involves no prejudice to the Department while failure to do so may prejudice the appellant by giving rise to further delays before the matter is resolved.
Preliminary Matters
9. Before I proceed to the substantive review, I consider it necessary to make it clear that the Department’s correspondence with the appellant did not, in my view, fully comply with the duty to give reasons clearly provided for in articles 7(4) and 11(4) of the AIE Regulations. Article 7(3) also refers to a specific obligation to provide reasons where a public authority seeks to provide information in an alternative form or manner to that requested. Simply stating, as the original decision does, that “article 7(3)(a)(i) of [the AIE Regulations] refers” is not a sufficient reason. This is made clear by the statement of Faherty J in Right to Know v An Taoiseach which notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot…constitute a sufficient reason for the refusal”. I do note that the Department have been cooperating with my Office over the last year to improve its handling of AIE requests and I welcome such cooperation and the progress made by the Department. However, I consider it necessary to point out, nonetheless, that the Department’s handling of this request is not acceptable and should not re-occur.
10. In addition, the Department’s correspondence with this Office has been less than satisfactory. The Investigator wrote to the Department setting out a detailed list of questions, including confirmation as to whether the Department was seeking to rely on article 9(2)(a) of the Regulations. The Department failed to provide specific answers to the questions set out by the Investigator. While it alluded to the fact that it considered the request to be manifestly unreasonable and provided detail as to the amount of work it considered would be involved in processing the request, it did not refer to article 9(2)(a) nor did it confirm whether or not it was seeking to rely on it. As I have noted above, I will consider the applicability of article 9(2)(a) as I do not consider it appropriate that the appellant should be subjected to potential further delay as a result of the Department’s failure to properly set out its position. I also consider that I have jurisdiction to do so, particularly having regard to the comments of the High Court in M50, that the Commissioner “enjoys a wide jurisdiction to conduct a de novo consideration of a request for environmental information” (paragraph 18) and those of the Court of Appeal in Redmond which note that “the extent of the inquiry is determined by the Commissioner” (paragraph 51).
Submissions of the Parties
11. The arguments made by the appellant in support of his position that he should be provided with consolidated Excel tables as requested, may be summarised as follows:
12. The Department’s arguments may be summarised as follows:
13. Article 7(3) of the AIE Regulations provides as follows:
14. The starting point of article 7(3) is that an appellant is entitled to be provided with environmental information in the form or manner specified by them. The exception to this rule occurs where the public authority to which the request has been made can demonstrate that (i) the information being requested is already publicly available in an easily accessible form or manner or (ii) that access in another form or manner is reasonable. The Department has expressly relied on article 7(3)(a)(i) only but since it has made references to reasonableness across its submissions I will also consider article 7(3)(ii) for completeness.
15. The first question for me to consider therefore is whether it can be said that the information requested by the appellant is already publicly available in an easily accessible form or manner. The appellant is seeking a consolidated list of licence applications for afforestation, forest roads and felling made in 2021 along with a list of the decisions made in respect of each of these categories of applications. The link provided to the appellant in response to his request is to the forestry section of the Department’s website which in turn contains a link to a “Register of Decisions of licence applications”. This link leads the user to a webpage which breaks down licence decisions into the three categories sought by the appellant i.e. afforestation, forest road and felling licence decisions. Each of those links in turn provide links broken down by year and month which then lead the user to pdf links which appear to be published at intervals of between two and five days, each link leading to a pdf table of decisions.
16. That link does not appear, however, to contain details of the applications made in 2021 for each of the requested categories as distinct from the decisions made in 2021. The Department have pointed out, in subsequent submissions to this Office, that a list of Recent Applications can be viewed on the Forestry Licence Viewer. However, it did not provide this information to the appellant. In addition, I note that the list of Recent Licence Applications currently listed on the viewer (as of 6 September 2023) dates from 4 September 2023 to 31 July 2023. The Department has, therefore, not demonstrated that a list of applications made in 2021 for afforestation, forest roads and felling is publicly available. The Department cannot therefore rely on article 7(3)(i) in respect of Part 1 of the appellant’s request.
17. As outlined above, information on the decisions made on afforestation, forest road and felling licences for 2021 is publicly available on the Department’s website. In other words, the information needed to compile the consolidated Excel table of decisions requested by the appellant at Part 2 of his request is publicly available. The question is then, whether it can be said that the current format of the information is “easily accessible” within the meaning of article 7(3)(a). The Department’s submissions repeatedly refer to the information being “easily accessible” without providing any reasoning as to why it considers this to be the case. The appellant submits that the Department’s position is contradictory as it states on the one hand that the information is easily accessible and on the other that for the Department to undertake the task would “place a detrimental effect on the business of the Department”. He submits that a teleological interpretation of “easily accessible” has to mean more than just an ability to access information by finding it on a website and must be understood as requiring accessibility in a manner that permits the requester to access the information in a manner consistent with the ability to utilise that information. He argues that the information cannot be considered “easily accessible” as making the information amenable to interrogation would mean creating an Excel spreadsheet, downloading approximately 1200 individual pdf files, converting them to Excel and copying the information into the main Excel worksheet. He also submits that this process is further complicated by the fact that the information in the pdf documents is not presented in a consistent format and some of the pdfs contain overlapping information. He estimates that this process would involve between 40 to 60 hours of work. I note that the Department estimates that approximately 93.6 hours’ work would be required.
18. Although it is not clear from its submissions, I assume that the Department’s argument that the information requested is available in another form or manner which is easily accessible is based on the fact that between 900 and 1200 pdf files are available on its website each containing parts of the information requested. As outlined above, this only applies to Part 2 of the appellant’s request i.e. the part concerning licencing decisions since information for licencing applications for 2021 does not appear to be available on the Department’s website. Insofar as the information on decisions is concerned, I agree with the appellant, that the concept of what is “easily accessible” for the purposes of article 7(3)(a)(i) must be approached from a teleological perspective, having regard to the purpose of the AIE Regulations and the Directive (see NAMA, paragraph 10). In this case, what the appellant is seeking is information in a form which allows interrogation of that information. His argument is that information split over a multitude of pdf documents on the Department’s website is not easily accessible as it renders the information far less usable than it would be were it contained in one Excel file which allows a user to search for or filter particular information. I think this argument must be upheld in circumstances where the Recital 1 of the AIE Directive makes it clear that the objective of the Directive is to provide “increased public access to environmental information and the dissemination of such information” on the basis that this contributes “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”. This purpose would be severely undermined were a narrow definition of the term “easily accessible” to be adopted which would allow a public authority a veto over the manner in which information was presented provided it was available from its website. Further support for this position is, in my view, to be found in the obligation contained at article 5(1)(b) of the Regulations which provides that public authorities must “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”. Finally, the fact that article 7(3)(a)(i) requires that the information must be publicly available and easily accessible suggests that something more than publication on a website is necessary to fulfil the second of these criteria, otherwise the reference to “easily accessible” would be redundant.
19. I am therefore not satisfied that the Department is entitled to rely on article 7(3)(a)(i) in respect of either Part 1 or Part 2 of the appellant’s request as it cannot be said that the information requested “is already available to the public in another form or manner that is easily accessible”.
20. The Department has not made express reference to either article 7(3)(a)(ii) or article 9(2)(a) of the Regulations in its correspondence with the appellant or in submissions to this Office. However, its most recent set of submissions, it argues that consolidating the information would be “manifestly unreasonable, vastly time consuming and an extreme strain on resources”. Article 9(2)(a) of the AIE Regulations provides that “a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought”. It transposes article 4(1)(b) of the AIE Directive. Article 7(3)(a)(ii) provides that a public authority may provide access to information in an alternative form or manner where “access in another form or manner would be reasonable”.
21. There appears to be a certain overlap between these provisions in this case. It appears to me that the key question to be addressed here is whether it might be said that pointing the appellant to the unconsolidated information on the Department’s website is reasonable in the circumstances, a key circumstance being that the Department argues it would be manifestly unreasonable for it to be required to provide the information to the appellant in the precise form or manner requested. In other words, if it can be said that it would be manifestly unreasonable for the Department to be expected to consolidate the information in an Excel sheet as requested by the appellant, it might then be said that providing the unconsolidated versions instead is reasonable and the Department could rely on article 7(3)(a)(ii) to provide the appellant with access in an alternative form or manner.
22. A difficulty for the Department, in this case, however is that unconsolidated information in relation to applications for 2021 (as distinct from decisions) does not appear to be available on the Department’s website nor has the Department indicated where such information is available. There is therefore no indication that the Department is in a position to provide access to the information requested at Part 1 of the appellant’s request in an alternative form or manner so it would not be possible for me to find in the circumstances of this case that the Department can rely on article 7(3)(a)(ii) in relation to at least part of the appellant’s request.
23. I will therefore consider whether the Department is entitled to refuse the appellant’s request for consolidated information on the basis that satisfying the request would be manifestly unreasonable.
24. The question of what constitutes a “manifestly unreasonable” request must be approached teleologically, having regard to the purpose of the AIE Directive (see NAMA, paragraph 10). The AIE Directive makes it clear that its purpose is to ensure “increased public access to environmental information and the dissemination of such information” and that “the disclosure of information should be the general rule” such that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases” with grounds for refusal interpreted “in a restrictive way” (see Recitals 1 and 16).
25. In addition, articles 7(2)(b) of the AIE Regulations and 3(2)(b) of the Directive envisage the processing of voluminous and complex requests and provide for extensions to the one-month timeframe within which a public authority is normally required to issue a decision on a request. It is clear therefore that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex.
26. Article 7(1) of the Directive imposes an obligation on Member States to ensure that public authorities organise environmental information which is relevant to their functions, and held by or for them, with a view to its active and systematic dissemination while article 3(5) provides for a duty to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. Article 5 of the Regulations seeks to implement these provisions and provides, inter alia, that public authorities must “make all reasonable efforts to maintain environmental information held by or for [them] in a manner that is readily reproducible and accessible by information technology or by other electronic means”. In his opinion in Commission v Germany, Advocate General Fennelly observed that “Article 7 [of the Directive], which requires periodic publication of general information on the state of the environment, appears to indicate that individual requests should, in principle, be on questions of detail” (see paragraph 30). This indicates, in my view, that the question of what is manifestly unreasonable for a public authority must take into account that the AIE Directive envisages widespread periodic proactive dissemination of environmental information as well as more detailed individual requests. This indicates that the mere fact that a request is detailed does not mean it is necessarily unreasonable.
27. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort or would substantially interfere with the normal course of its activities. The findings of the CJEU in Verein für Konsumenteninformation are of particular relevance when considering the application of the “manifestly unreasonable” exception”. Although these findings relate to Regulation No 1049/2001, that Regulation contains a similar exception to that contained in article 9(2)(a) of the Regulations. Paragraphs 101 to 103, 112, 113 and 115 in particular, provide useful guidance:
28. In light of the findings of the CJEU in Verein für Konsumenteninformation, I consider that the exception in article 9(2)(a) is only available where the administrative burden in dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. In that regard, the test set out by the CJEU at paragraph 69 of its decision in Land Baden-Württemberg should be borne in mind:
29. The European Commission’s First Proposal for the AIE Directive ( COM/2000/0402 final - COD 2000/0169 ) envisaged that the exception in article 4(1)(b) of the Directive would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit”. It went on to acknowledge that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities” before noting that “authorities should be able to refuse access in such cases in order to ensure their proper functioning”. The interest which the “manifestly unreasonable” exception seeks to protect therefore is the interest in ensuring a public authority is not overburdened by a request, to the extent that this significantly interferes with its ability to perform its other tasks and duties.
30. That being said, it is also important to bear in mind the duties imposed on public authorities by article 7 and 3(5) of the AIE Directive. The extent to which the obligations contained in articles 3(5) and 7 have been transposed by the Regulations has not been fully explored. It is clear from the jurisprudence of the CJEU, in cases such as C-188/89 Foster v British Gas plc, that these obligations can have a direct effect on public authorities to the extent they can be considered emanations of the state. I accept that the jurisdiction conferred on this Office by article 12 of the AIE Regulations relates to decisions on individual access requests, and not directly to the obligations relating to proactive dissemination. However, the requirements contained in article 7 are relevant to the obligation to interpret the AIE Regulations teleologically, having regard to the purpose of the Directive, when performing the functions provided for by article 12 of the AIE Regulations. This flows from the NAMA judgment, referred to above, and the doctrine of indirect effect first set out by the CJEU in C-14/83 Von Colson v Land Nordrhein-Westfalen. The exception in article 9(2)(a) of the AIE Regulations is not intended to endorse any failure by public authorities to comply with their duties to organise and disseminate information. This means that when considering the workload imposed by a request, it is important not to allow for a situation where a failure to comply with the obligations imposed by articles 7 and 3(5) of the Directive and article 5 of the Regulations, increases the chances that a public authority will be able to successfully rely on the “manifestly unreasonable” exception. This would lead to a perverse situation whereby failure to comply with certain obligations under the Directive and Regulations would effectively be rewarded by the application of less onerous standards by this Office on review of requests under article 12.
31. As outlined above, the Department submits that consolidating information which is already publicly available is manifestly unreasonable in circumstances where an unconsolidated form of the information is already publicly available. It submits that consolidating the information requested by the appellant would involve copying the information onto a new excel sheet which involves a minimum of 156 pdfs of varying lengths for one year of applications for one scheme. Since the appellant is seeking information for applications and decisions in respect of three schemes, it estimates that consolidation of at least 936 individual pdfs would be required. On the basis of the trial run conducted for one month of applications for one scheme, the Department estimates that it would take approximately 93.6 hours work to complete a consolidation across applications and decisions over three schemes which amounts to nearly three full working weeks for one member of staff.
32. The appellant argues that it is reasonable for the public to expect that the Department would maintain information on licence applications and decisions in a manner which allows it to be interrogated. I agree that it is reasonable to at least expect that the Department would be able to prepare such information. I note that the tables uploaded in pdf format must have been prepared in another format before they were converted to pdf and that the Department has now begun to upload files in Excel format. This casts some doubt on the Department’s assertion that at least 93.6 hours of work would be required to consolidate the individual pdf documents into one Excel spreadsheet.
33. However, even if it is the case that it would take one staff member approximately three working weeks to collate the information, I do not consider this to amount to a heavy administrative burden of the standard the CJEU found to be required in Verein für Konsumenteninformation v Commission. Dedicating one staff member to a task for three working weeks does not, in my view, risk substantial interference with the work of the Department, which employs over 3,000 staff (see: https://www.gov.ie/en/organisation-information/20e3b-careers-in-the-department-of-agriculture-food-and-the-marine/ ).
34. The Department also submits that the appellant in question has made 108 forestry related AIE requests to the Department up to August 2023 and “requests like these two being appealed where information is easily accessible is a further drain on already stretched resources across the board”. It argues that “this is one individual requester making requests that require hundreds of hours of work and potentially could cost the Department to do and by extension the tax payer” and that if the Department is “instructed to consolidate these records in a manner of [the appellant’s] choosing then who is to say how many more requests from any requester for consolidation of the same or other information the Department or any other AIE body would then have to collate records that are already available for them (sic)”. It argues that the granting of the appellant’s request sets a precedent where “any AIE body or Department would have to potentially consolidate the same information, which is easily accessible already, in a format that any requester wishes which perpetuates the already staggering volume of AIE requests being handled by the Department”.
35. The UK Court of Appeal in Dransfield v Information Commissioner and Craven v Information Commisioner [2015 EWCA Civ 454 ] found that the “manifestly unreasonable” exception provided for in the Environmental Information Regulations covers vexatious requests and the Commission’s Proposal also indicates that the exception in article 4(1)(b) which is transposed by article 9(2)(a) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit”. However, the making of a significant number of requests is not in and of itself vexatious or an abuse of process and the Department’s submissions provide no indication of why the making of those requests would result in the processing of this request being “manifestly unreasonable”. I appreciate that the Department handles a significant volume of AIE requests but it must also be borne in mind that a significant portion of the work it carries out has an environmental impact. As I have said on a number of previous occasions, the obligations contained in the AIE Regulations are legally binding and it is for each public authority to which they apply to ensure that it is properly resourced to comply with them. Like all legal obligations, compliance will result in costs to the Exchequer and while I accept that the “manifestly unreasonable” exception does recognise that there are certain circumstances in which the dedication of resources to requests may be so inefficient that it outweighs the general public interest in disclosure, as I have also outlined above, this is envisaged to be in exceptional cases only and must also take account of the clear obligation in the Regulations to organise and proactively disseminate environmental information which also requires the expenditure of resources.
36. With respect to the Department’s argument that granting this request sets an unhelpful precedent, I think it is important to point out that, as with all decisions of this Office, this decision does not in fact set binding precedent and simply involves the application of the Regulations and the Directive to the particular circumstances of this case, guided by binding precedent from the Irish and European courts. The circumstances in which a public authority will be required to present information to a requester in a manner of their choosing are already determined by the AIE Regulations. Article 7(3) provides for a presumption that a requester is entitled to information in the form or manner requested unless the public authority can demonstrate that the information is already publicly available in an easily accessible form or that the provision of access in another form or manner is reasonable. Article 9(2)(a) provides that a request may be refused where compliance with the request would be manifestly unreasonable. The conditions for reliance on article 9(2)(a) are found both in the wording of the Regulations and in guidance from the courts and include that the public authority in question establish that compliance with the request would impose a particularly high burden resulting in significant interference with its other work and that the interest in avoiding that burden outweighs the public interest in disclosure of the information. The decision in this case considers whether those conditions have been met by the Department and finds that they have not, it does not set a precedent for anything more.
37. The final question I consider should be addressed, for completeness, is whether it can be said that provision of unconsolidated pdf tables in response to Part 2 of the appellant’s request could be considered permissible in light of article 7(3)(a)(ii) of the Regulations. Although I do not consider the Department to have established that satisfying the request would be manifestly unreasonable, this is not entirely the same as considering whether access in another form or manner would be reasonable.
38. The reasonableness requirement in article 7(3)(a)(ii) must be interpreted teleologically in line with the purpose of the Directive (see NAMA, paragraph 10). The argument made by the Department in support of the position that it is reasonable for it to provide access in an alternative (i.e. unconsolidated form) is that it would be manifestly unreasonable to expect the Department to collate the information. However, the Department has not established that it would be manifestly unreasonable to expect it do so nor has it established compliance with the requirements of article 5(1)(b) of the AIE Regulations to take “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”. As I have outlined above, it is not within my jurisdiction to exercise a supervisory role over the manner in which public authorities organise and disseminate environmental information but I consider this question to be relevant to the exercise of my jurisdiction under article 12 which involves consideration of whether the Department’s actions in this case can be said to be reasonable. I also note that the Department has not suggested any other basis on which it is reasonable to expect the appellant to carry out the work involved in collating the information so as to enable it to be interrogated. Articles 3(5) and 7 of the AIE Directive make it clear that arrangements must be in place to ensure the public are adequately supported in seeking access to information and that public authorities take steps to ensure that access can be effectively exercised. Accordingly, I do not see how I can conclude that it is reasonable for the Department to provide the appellant with information in an alternative form or manner to that requested.
39. In addition, it is not possible for the appellant to obtain all of the information he has requested via the Register of Decisions webpage and the Forestry Licence Viewer. As outlined above, unconsolidated information in relation to applications for 2021 (as distinct from decisions) does not appear to be available on the Department’s website nor has the Department indicated where such information might be available. There is therefore no indication that the Department is in a position to provide access to the information requested at Part 1 of the appellant’s request in an alternative form or manner. I do not therefore consider it possible to rely on article 7(3)(a)(ii) as the alternative form or manner proposed does not answer half of the appellant’s request and cannot therefore be said to be reasonable.
40. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision and direct it to provide the information requested by the appellant in the form requested by him.
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