Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-136964-J3X0J7
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 an identified case file was justified
11 October 2024
1. On 22 March 2023, the appellant submitted the following AIE request to ABP:
“I would like to receive an electronic copy of [the] file in this case [external-link https://www.pleanala.ie/en-ie/case/315216 | https://www.pleanala.ie/en-ie/case/315216 ] I would like to receive it via email, ideally by file transfer.”
2. On 27 March 2023, ABP issued its original decision, wherein it referred to article 7(3) of the AIE Regulations and stated:
“…the information requested, aligned with the policy of the [ABP], when the scoping request is completed, [ABP’s] case file is available for inspection and purchase. You can arrange to view and get copies of documents from this case which are in the public domain through our public access service[.] In doing so we invoke the provisions of article 7(3) of the AIE Regulations 2007, as amended. I list the contact details for public access.
Email: publicaccess@pleanala.ie , Phone: 01-8737104.
To expedite this request in granting access to the records, I have forwarded your request to my public access colleagues who will log your request and be in touch with regards to the particulars to proceed.”
3. Also on 27 March 2023, the appellant sought an internal review of ABP’s decision on the basis of his view that ABP had “[refused] to provide an electronic copy as requested”.
4. On 28 March 2023, ABP issued its internal review decision, wherein it stated that it was affirming its original decision. ABP noted that the appellant’s request was for an electronic copy of case file ABP-315216-22, which concerned scoping of an Environmental Impact Assessment Report (EIAR) for the proposed development of a mixed-use scheme comprising approximately 1,087 residential units and approximately 23,400 sq.m. of non-residential floorspace incorporating commercial, community and arts/cultural uses at Park West Avenue Cherry Orchard, Dublin 10. ABP stated that its decision on the scoping request was made on 15 March 2023 and, in accordance with section 146 of the Planning and Development Act 2000 (as amended) (the PDA) , the file is available to the public for inspection and copies of the documents from the case can be requested at the ABP offices or through its Public Access Service.
5. ABP referred to articles 7(3)(a)(i) and (ii) of the AIE Regulations and reiterated its position:
“Public access to this case file is already available to you under section 146 of the Planning and Development Act 2000 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 - email: publicaccess@pleanala.ie Phone: 01-873 7104.
I confirm that the AIE Officer has forwarded your request to our Public Access section who will proceed to process your request.
I affirm that the AIE Officer’s response to your request was in accordance with the provisions of the AIE Regulations. Nowhere within the response has the AIE Officer refused to provide an electronic copy of the case file to you.”
6. The appellant submitted an appeal to this Office on 29 March 2023.
7. During the course of this review, the appellant informed this Office that, in addition to his correspondence with ABP’s AIE Team described above relating to the AIE decision-making process (i.e. the original request, original decision, internal review request, and internal review decision), he had other correspondence with both ABP’s AIE Team and Public Access Team. He provided this Office with copies of the following correspondence:
a. Email from Public Access Team to appellant dated 28 March 2023 at 18:57 – In this email the Public Access Team thanked the appellant for requesting a copy of case file ABP-315216-22. It attached a Declaration Form and stated that, in advance of his public access request, it should be completed, signed, and returned along with the cost of the query €28.50 (I note that a copy of the Declaration Form is also available on ABP’s website here )
b. Email from appellant to Public Access Team (cc’ing the AIE Team) dated 28 March 2023 at 19:53 – In this email the appellant asked “[c]ould [ABP] please set out the basis for the proposed fee and why [ABP is] asking me to fill out a form? Please include specific reference to the AIE Regulations. As far as I can establish neither is allowed under AIE. I think [ABP] should just forward me a copy of the file without any further delay.”
c. Email from appellant to Public Access Team (cc’ing the AIE Team) dated 30 March 2023 at 09:46 – In this email, the appellant queried, “[a]ny update on this, [the] AIE officer told me that the file was publicly available so I don’t understand why you are asking me to pay for it or to fill out a form.”
d. Email from the AIE Team (cc’ing the Public Access Team) to the appellant dated 30 March 2023 at 15:48 – In this email, the AIE Team stated:
“…please be advised under article 7(3) of AIE regulations, the below information is already available to the public in another manner though our public access team. Our public access team facilitate requests on decided case file documents which are in the public domain and interface with our archival services. The declaration form is part of that existing and reasonable manner specified therein through which the public can obtain such information, as requested. The public access team will charge an associated fee, details of fees are laid out in our fees and 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/PublicAccess-Guide-EN.pdf
Alternatively, the file is made available at the offices of the Board for inspection by members of the public within 3 working days following the relevant decision. There is no charge for viewing the case file. If you would like to view this file, we do ask that you arrange a time with the public access team so we can ensure that the file is available for your visit. My public access colleagues will be happy to forward a copy of the file, on provision of fee and declaration form which facilitate this manner of access. Please kindly contact [the Public Access Team] if you wish to proceed…”
e. Email from the appellant to the AIE Team (cc’ing the Public Access Team) dated 2 April 2023 at 11:11 – In this email, the appellant stated “I am still waiting for an explanation as to how a fee of almost €30 is being sought for access to a public file. This fee could not be charged under AIE. Can you please explain how you calculated this fee and the legal basis for it?”
f. Email from the AIE Team (cc’ing the Public Access Team) to the appellant dated 4 April 2023 at 15:41 – In this email, the AIE Team stated “[p]lease note with the public access service, you can avail of access to the case files at your own convenience as such, [ABP] consider this matter closed under AIE legislation. As stated, the breakdown of the fee is in line with the fees payable for public access on our website and in line with section 15 of the AIE regulations. Further communication can be directed to public access who can assist you further.”
g. Email from the appellant to the AIE Team (cc’ing the Public Access Team) dated 4 April 2023 at 15:44 – In this email, the appellant stated “[t]hanks – can someone let me know how the fee of €28.50 was calculated? That’s all I am asking.”
h. Email from the Public Access Team (cc’ing the AIE Team) to the appellant dated 4 April 2023 at 18:27 – In this email, the Public Access Team stated “…I can now confirm that a copy of ABP-315216-22 has been organised by the Public Access Team for your attention. As previously advised in my email of 28th March, 2023, the cost of the file is €28.50 and this fee has been calculated by the size of the requested file and applying the Public Access Service Charges accordingly.”
i. Email from the appellant to the Public Access Team (cc’ing the AIE Team) dated 4 April 2023 at 18:48 – In this email, the appellant stated:
“I am asking how the cost has been calculated in relation to this specific file. The “service” charges document just give rates so I can’t work out from this alone what you are asking me to pay for.
From what I can see the only charges that you can raise are photocopying (which is not required) and a CD (which is not required). Based on your own schedule of charges there should therefore be no charge. As you know, you are not entitled to charge for something that is not on your list of charges.
I cannot understand why in the 21st century I am being asked to pay a fairly hefty fee to access electronic information like this, particularly when the Board already has an electronic copy of the application and any additional documents are generated by the Board in electronic format. It would take a few minutes to simply upload the information to a file transfer service, which I can provide if you do not have access to one.
I would therefore repeat my request to know specifically how a charge of €28.50 has been arrived at and what it covers. I have asked a few times for this fairly basic information and yet it hasn’t been provided - the reasons for this evasiveness are not entirely clear to me.”
8. 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)
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. 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.
11. While ABP only mentioned the amount to be charged and article 15 of the AIE Regulations in its correspondence with the appellant outside the AIE decision-making process, with no reference to any charges either its original or internal review decisions, having examined the correspondence between the parties, I am satisfied that I can consider ABP’s application of article 15(1) in this case.
12. Accordingly, 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 an identified case file was justified.
13. 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.”
14. 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.
15. 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.
Positions of the Parties
16. 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 his position, which is summarised in his comments set out below:
“It really makes no difference to me whether the file is provided by the AIE [Team] or the Public Access Team, however [ABP] cannot channel requests into a public access procedure that does not comply with the AIE Regulations under the pretext of Regulation 7(3). It seems to me that it is not reasonable to refuse a request for information that is available in another form or manner or manner when there are extra charges and when the public authority seeks to impose conditions on access.
In my view that is what is happening here. The AIE request for access in a form and manner that I specified is refused, and I am being forced to engage with the public access team which requires me to agree to terms and conditions [in light of the Declaration Form] and to pay a fee that is not allowed under AIE.”
17. 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 file sought. In its submissions to this Office, ABP provided further details in support of its decisions, which I have summarised below:
a. ABP gave a general 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 from hundreds to tens of thousands 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. The handling of the physical file on request for duplication of documents entails substantive time and effort (hours-days) for one or more staff members depending on the size of the case file.”
(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 .
b. ABP then went on to refer to the particular matter at issue, as follows:
(i) ABP explained that its decision on planning case ABP-315216-22 was made on 15 March 2023 and, in accordance with section 146 of the PDA, the case file is available to the public for inspection and copies of documents can be requested at ABP offices 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 was he refused an electronic copy.” It stated that the appellant was informed that the Public Access Team would log his request and would be in touch with him with regard to the particulars of proceeding his request. ABP further noted that its internal review decision affirmed its original decision under article 7(3) of the AIE Regulations.
(iii) ABP submitted that access to the case file in the manner proposed through its Public Access Service is reasonable and is in accordance with article 7(3) of the AIE Regulations. It stated that the appellant is aware of and uses the Public Access Service to obtain hard or scanned copies of case files or alternatively to view decided case files in person at its offices.
(iv) ABP noted that charges are incurred where there is a request for copies of documentation on decided case files. It stated that the file must be physically retrieved and a hard or scanned digital copy must be created by the Public Access Team. ABP stated that, in charging fees for providing hard or scanned copies of documentation, it invokes section 146(6) of the PDA.
(v) ABP stated that on receipt of the appellant’s request for an electronic copy of ABP-315216-22, its Public Access Team, using its fees guide, collated a fee of €28.50 for providing the appellant with a scanned copy of the case file. ABP stated that it considers this fee to be reasonable and in accordance with the relevant planning legislation and its fees guides.
18. 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, he must accept the terms contained in the Declaration Form.
19. 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.
20. 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.
21. 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.”
22. 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.”
23. 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.”
24. 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”
25. 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.
26. 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.
27. ABP stated that while it noted the appellant had raised concerned 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.
28. 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.
29. 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 315216 relates to a Strategic Infrastructure Development (SID). 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). ABP referred back to points (i), (ii), (iii), (iv), (v), (vi), and (vii) 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 ABP to explain how the fee of €28.50 was collated using ABP’s fee’s guide, including a breakdown as to how the fee was calculated for providing the information electronically. In response, ABP stated that the fee of €28.50 was calculated based on the costs associated with providing the scanned copy of the physical file. It indicated that this fee was relatively low because a significant portion of the material held had already been scanned and was available electronically. It stated that consequently, less time was required to prepare the file compared to instances where complete scans are necessary. It stated that its fees guide outlines charges based on the labour and resources involved in handling and processing requests.
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.”
30. 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 an identified case file via email, 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.
31. 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.
32. 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.
33. 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.
34. 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”.
35. 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.
36. 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.”
37. 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.
38. 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.
39. The appellant in this case requested access to an electronic copy of an identified case file via email, 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 internal review decision and 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.
40. 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.
41. 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.”
42. ABP did not identify any information coming within the scope of the appellant’s request to which the Declaration Form did not apply that could be viewed and downloaded for free from its website. Although ABP stated that in directing the appellant’s request to its Public Access Service, it had neither refused to give access 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 the release of the electronic copy of 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 in response to his AIE Regulations.
43. In circumstances where the appellant was required to 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.
44. Turning to the matter of the fee charged for access to the information sought, as noted, ABP only mentioned the amount to be charged and article 15 of the AIE Regulations in its correspondence with the appellant outside the AIE decision-making process, with no reference to any charges either its original or internal review decisions. If ABP was seeking to charge a fee under article 15 of the AIE Regulations (the wording of which is set out above), it should have referred to and provided reasons for same in its decisions, 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 the fee of €28.50 was calculated based on the costs associated with providing the scanned copy of the physical file; indicated that this fee was relatively low because a significant portion of the material held had already been scanned and was available electronically; stated that consequently, less time was required to prepare the file compared to instances where complete scans are necessary; and stated that its fees guide outlines charges based on the labour and resources involved in handling and processing requests.
45. 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).
46. 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.”
47. 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”.
48. 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.
49. 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.”
50. Regarding the findings of the ACCC in ACCC/C/2017/147, 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 the comments of the ACCC at paragraphs 86 to 89 in that case, including that charges “must not include the cost of the initial production, collection or acquisition of the information itself or any other indirect cost” and the appellant’s argument to this Office that “a public authority cannot levy additional charges when it provides copies of publicly accessible files, so even if it could explain the basis of the charge, which it hasn’t, it cannot in any event exceed the charge under AIE. Given the charge under AIE may only be for material costs, electronic access must be provided for free regardless of how the information request is handled administratively by [ABP].” 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, however that fee must be justified in each particular case.
51. Having regard to the above, while the fee in this case is relatively low, I am not satisfied that ABP adequately justified the fee charged, despite repeated requests from the appellant in relation to how the fee was calculated. It is not clear from either the decision-making records or from ABP’s submissions to this Office exactly how the fee of €28.50 was calculated. It is not clear how much of the file requested had to be scanned, and I would note that the ABP public access fees guide sets out in detail charges for photocopying but not for scanning, simply stating that for “documents scanned and copied onto a CD” the cost is “€6.00 a disc plus any copying which may be required”. 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.
52. 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 AIE Regulations. In particular, ABP should consider whether all potential aspects of supplying information are set out in the schedule of charges, e.g. scanning, which it appears was required in this case. 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.
53. I consider that the most appropriate course of action to take at this stage is to annul ABP’s decision under articles 7(3) and 15(1) of the AIE Regulations. I note that ABP have stated that access to case files is not restricted based on a decision by the requestor not to sign the declaration form. 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 of 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.
54. 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.
55. 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