Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-149935-L0S6B3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
i) whether the Council carried out its new internal review process in line with article 11 of the AIE Regulations
ii) whether the Council provided the appellant with all relevant information in accordance with article 7(1) of the AIE Regulations and whether the Council had established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations
6 December 2024
1. On 2 March 2023, the appellant made a request to the Council under the AIE Regulations seeking a report issued by the CEO of the Council to An Bord Pleanála; information on a hydrogeologist employed by or consulted by the Council; and details of lobbying by a specified company or its agents. The appellant set out specific questions within the request, labelled “Questions 1-7.”
2. On 6 March 2023, the Council provided a copy of the CEO’s report to An Bord Pleanála to the appellant. In its decision of 23 March 2023, the Council informed the appellant that information on the hydrogeologist was available in the report provided. In respect of the queries on lobbying, it referred the appellant to the Register of Lobbying maintained by the Standards in Public Office Commission.
3. On 19 April 2023, the appellant sought an internal review of this decision. On 10 May 2023, the Council issued an internal review in which it provided copies of an email from the relevant company sent to all 40 members of the council, and one sent to 6 specified members. The appellant appealed to this Office on 16 June 2023. It stated that its reason for appeal was that it was unhappy with the failure of the Council to provide information in relation to points 5, 6 and 7 of its request of 2 March 2023. These were the requests relating to lobbying.
4. The Commissioner considered the issue of whether the Council was justified in refusing the appellant’s request and whether the Council had taken adequate steps in an effort to identify all relevant information and in providing partial information only in the case of one of the records provided. On 14 March 2024, the Commissioner annulled the internal review decision of the Council and directed that a new internal review process be carried out under article 11 of the AIE Regulations.
5. On 18 June 2024, the Council issued its new internal review decision to the appellant. The internal review set out the following:
“I am granting your request and set out below responses to your questions:
Q5. Dr Pat Daly, Management Team and staff of the Planning Department have all confirmed that they were not lobbied by any of the above
Q6. The planning files contain no record of lobbying from Councillors or other Politicians in relation to the punches Cross Development.
Q7. Emails sent from Cloncaragh Investments to Councillors in 2019 are attached are listed on the schedule of records which is also attached. All 40 Councillors have been contacted and have confirmed that these emails are the only communication they hold in this regard.”
6. The appellant appealed to my Office on 19 June 2024.
7. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Limerick City and County Council. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner is to review a public authority’s internal review decision and to affirm, annul or vary it. The scope of the Commissioner’s remit is limited to this decision-making process.
9. This review concerns whether the Council was justified in refusing access to environmental information on the grounds that no further information was held by or for the authority concerned in the meaning of article 7(5) of the Regulations.
10. This review also concerns whether the Council carried out its new internal review process in line with article 11 of the AIE Regulations.
Submissions
11. On 18 June 2024, the following submission was made by the appellant to this Office in relation to the new internal review issued by the Council on that same day:
“The communication received is vague and does not show any correspondence sent by (the named AIE officer) or responses received in relation to the questions asked by (the named AIE officer) to the Council staff and to the Councillors.
No correspondence was provided directly from Dr. Pat Daly, the Management Team and staff of the planning Department in relation to whether they were lobbied. Therefore, how did the relevant parties confirm they were not lobbied to (the named AIE officer)? what correspondence did (the named AIE officer) send to the relevant parties and is this correspondence available. What correspondence did (the named AIE officer) receive from the relevant parties and is this correspondence available?
We also wish to draw your attention to point 6 of the letter dated 18th June 2024 from (the named AIE officer) and her response which is inadequate.
Question 6, was not limited to the planning files. (The named AIE officer’s) response is evasive and unsatisfactory by limiting her response to the Plannning Files. Lobbying can occur by verbal and written communication and this is not limited to merely the planning files.
Question 6 asked: "Did any Councillor or other Politician or any other person or organisation Lobby Limerick City & County Council or any of its staff in respect of the Punches Cross Development? If so, may be please have details?
Response by LCCC: " The Planning files contain no record of lobbying from Councillors or other Politicians in relation to the punches Cross Development"
Question 7: "Was any Councillor lobbied by any person in relation to the Punches Cross Development? If so, may we please have details?
Response by LLCC:"Emails sent from Cloncaragh Investments to Councillors in 2019 are attached are listed on the Schedule of records which is also attached. All 40 Councillors have been contacted and have confirmed that these emails are the only communications they hold in this regard"
The emails sent to Councillors in 2019 do not appear to be provided. In addition, (the named AIE officer) limited the request to "email" communication, however, our question was not limited to "email correspondence". Lobbying can occur by verbal and written communication (e.g. letter, text, dm's, telephone, online meetings, in person, etc). We would be obliged if we could receive a copy of the correspondence sent by (named AIE officer) to all relevant parties and the responses provided.”
12. In submission to this Office on 15 July 2024, the appellant made the following points:
“Environmental Trust Ireland is challenging the review of the revised Internal Review Decision issued by Limerick City & County Council on the 18th June 2024, refusing or failing to provide all of the information requested as set out in our letter of the 2nd March 2023. While Limerick City & County Council purports to be granting the request, it is regrettable that Limerick City & County Council has not provided all the requested information.
Article 11(2) AIE Regulations which stipulates
“The public authority concerned shall designate a person unconnected with the original decision whose rank is the same as, or higher than, that of the original decision-maker to review the decision-maker to review the decision”
Unfortunately, this did not happen. (named AIE officer), decided on the original request by letter dated 23rd March 2023 and refused the relevant information. (second named AIE officer), of Limerick City & County Council decided on the internal review on the 10th May 2023, which redacted certain information and failed to answer the relevant information.
Following a successful appeal by Environmental Trust Ireland to the Commissioner for Environmental Information against Limerick City & County Council, the Council was requested to carry out a new internal review of the review decision made by (the second named AIE officer) of Limerick City & County Council. However, this did not happen. Instead, Limerick City & County Council erroneously reverted back to the original decision maker, (the first named AIE officer). This is contrary to article 11(2).
Article 12(7): AIE Regulations
“A public authority shall comply with a decision of the Commissioner under sub-article (5) within 3 weeks after its receipt.”
A decision was eventually received on the 18th June 2024, over three months after the decision of the Commissioner for Environmental Information was made on the 14th March 2024.
The communication received is vague, inadequate, incomplete and does not provide information or address the specific questions asked. Instead, (the AIE officer), provides an alternative reply to a different question.
(The named AIE Officer), failed to provide any correspondence received in relation to the questions posed by (the named AIE Officer) to the Council staff and to the Councillors.
There is no evidence or copies of correspondence provided from Dr. Pat Daly, the Management Team and staff of the planning department in relation to whether they were lobbied. No reasons have been provided for this omission by (the named AIE officer)
Instead, (the named AIE officer) has replied without providing the names of the management team and the names of those in the planning department of Limerick City & County Council who she contacted and failed to provide copies of the correspondence she sent to the relevant parties and any responses received. (The named AIE officer), appears to be answering for the relevant parties notwithstanding as AIE officer, she is required to be independent.
In relation to the following Information sought:
5. Was the CEO, Dr.Pat Daly or any member of the Council Executive/Directorate or staff in the Planning Department Lobbied by any of the following:
Johnathan Simpson, John Simpson, Sophia Lawlor, Derick Walsh, Cloncarragh Investments Ltd?
If so, may we please have details.
Response of LCCC: Dr. Pat Daly, Management Team and staff of the Planning Department have all confirmed that they were not lobbied by any of the above.
No information was provided by Dr.Pat Daly, the Management Team and Staff of the Planning Department to this effect. No information or copies of emails sent by (the AIE officer) to the relevant parties was provided. All that has been provided is (the AIE officer) own interpretation of what occurred.
“In respect of query 5, the Council submitted that searching for lobbying beyond any note on the planning file would be a very broad request, as it would involve liaising with 40 members of staff to determine if any of them held records falling with the scope of the request: the chief executive, 8 directors of service, and 31 staff of the planning department. However, it would seem reasonable to suggest that such a request could be made in a single email sent to all staff identified as relevant, or at most a small number of emails grouped according to grade or division.”
No evidence of any emails sent by (the AIE officer) to the relevant parties was provided. No evidence was provided of the conclusions that (the AIE officer) made.
Q.6. Did any Councillor or other Politician or any other person or organisation Lobby Limerick City & County Council or any of its staff in respect of the Punches Cross Development? If so, may we please have details?
Response by LCCC: “The Planning files contain no record of lobbying from Councillors or other Politicians in relation to the Punches Cross Development”
The above question was not confined to merely the planning file. This approach was also criticised at Paragraph 17 of the previous OCEI decision in this matter. Lobbying can occur by verbal and written communication (i.e email, text, telephone, letter, meeting etc). In addition, no direct correspondence was provided by (the AIE officer) from the relevant parties or copy of (the AIE officer’s) questions put to Councillors was provided.
Paragraph 18 of the decision of the Commissioner for Environmental Information states:
“The respect of queries 6 and 7, the Council similarly submitted searches would have involved liaising with all 40 councillors to determine if any of Them held records falling within the scope of the request. Similarly, it would appear this could have been achieved through a single email to all councillors.”
Q7. “Was any Councillor lobbied by any person in relation to the Punches Cross Development? If so, May we please have details.?”
Response by LCCC:
“Emails sent from Cloncaragh Investments to Councillors in 2019 are attached are listed on the Schedule of records which is also attached. All 40 Councillors have been contacted and have confirmed that these emails are the only communication they hold in this regard.”
No emails sent from Cloncarragh Investments to Councillors in 2019 were provided.
No evidence was provided of how the Councillors were contacted or any responses of the 40 Councillors were provided.
(The named AIE Officer) limited our request to information in relation to lobbying of councillors to merely “email” communication, however, our question was not limited to “email “correspondence. Lobbying can occur by verbal and written communication (e.g. letter, text, dm’s, telephone, online meetings, in person etc). However, it is noted that (AIE officer), confined lobbying to email correspondence.
The correspondence sent by (AIE officer) to all relevant parties was not provided and no replies to that correspondence was provided either.
Was the above question put to the Councillors in its entirety, by (AIE officer)? Or was a different question put to Councillors? Our question was broader and sought to ascertain “Was any Councillor lobbied by any person in relation to Punches Cross Development”
This requires a yes or no response from the Councillors directly, together with supporting documentation rather than relying on hearsay evidence from (the AIE officer)
Further, (the AIE officer) has failed to provide reasons for not providing copies of her communications to the relevant parties and copies of the responses she received.
Under Article 7.5 of AIE Regulations- there is an express requirement for a public authority to clearly set out the actions it has taken in response to a request. The importance of this has been highlighted at Paragraph 20 of the previous decision of the Commissioner for Environmental Information in the matter of Environmental Trust Ireland v Limerick City & County Council.
Background:
The information requested is in the public interest.
1. This information will assist in participation in a decision-making process on environmental matters, for the following reasons:
The information requested is in the public interest. The developer has repeatedly attempted to seek planning permission in relation to the same contaminated site which was formerly a disused petrol station and prior to that, a quarry, at Punches Cross Limerick.
There are major environmental issues with the site in question which impacts directly on the conservation interests of a number of nearby European Protected sites and the site has a direct hydrological link to European Sites.
There have been efforts to prevent, silence and deter environmentalists from participation in the planning decision making process.
Following a successful High Court Judicial Review, in the matter Environmental Trust Ireland V An Bord Pleanala and Cloncarragh Investments Ltd, this case which involves major environmental issues was remitted back to Limerick City & County Council and An Bord Pleanala.
On the 15th December 2022, a special meeting of Councillors was held. At that meeting, certain Councillors were very pro developer and pro-development. No Councillor at that meeting declared that they were lobbied by the developer or made a declaration of any conflict of interest.
Environmental Trust Ireland only retrospectively became aware that 40 Councillors were lobbied by the developer, Cloncaragh Investments Ltd following receipt of a letter from a Senior Executive Officer, of Limerick City & County Council, dated 10 May 2023, arising from an Internal Review of Environmental Trust Ireland’s AIE request made to Limerick City & County Council. However, only partial information was released. In the interest of fairness, openness and transparency the following information is still outstanding.
1. We were not provided with any information from the CEO, Dr. Pat Daly or any member of the Council Executive/ Directorate or staff in the Planning Department who may have been Lobbied.
Instead, (the AIE officer) has purported to speak on their behalf.
In addition, it is not even clear how she contacted the relevant people, if the relevant people were contacted individually? The names of the relevant individuals? The replies received were not provided.
2. We were not provided with any information in relation to any Councillor or other Politician or any other person or organisation who lobbied Limerick City & Council or any of its staff in respect of the Punches Cross Development?
3. Was any Councillor lobbied by any person in relation to the Punches Cross development? If so, may we please have details?
We were not provided with any copies of correspondence from the Councillors or Council staff in relation to this specific question.
The very inadequate response provided by (the AIE officer), by limiting our request to information is contrary to Article 8 - Quality of environmental Information S.I No: 133/2007 – European Communities (Access to Information on the Environment) Regulations 2007 which stipulates:
“......ensure that any information that is compiled by them or on their behalf is up to date, accurate and comparable”
The Environmental information requested is in the public interest.
We are aware following a local newspaper report of the special meeting of Councillors that Councillors went on a frolic of their own and completely ignored the High Court Order and Directions, the following is a record of what some Councillors said at the meeting:
Cllr. Joe Leddin said:
“ I do feel some of the submissions that have been made are quite spurious in terms of potential bird collisions. A lot had the opportunity to travel extensively, and I don’t see any issue with the skyscrapers and the birds in New York having a problem. Birds like the rest of us have two eyes, they don’t fly into buildings”.
Cllr Sean Hartigan:
“There are no reasons, environmental or otherwise, why we should not fully support this development”.
Cllr Conor Sheehan:
“ I’ve had students onto me who are considering pitching tents, sleeping in tents, commuting three and four hours. It’s unfortunate that we are here again. There is far too much in the planning system which is being decided by the courts.”
He went on “It’s important infrastructural projects aren’t being held to ransom for spurious reasons. We have well over 11,000 people homeless. There’s far too much nimbyism which goes in with this sort of stuff”.
The three very vocal Councillors failed to disclose that they received communications from a developer on a planning matter and that they were lobbied by a developer, but at the same time, they actively, participated in a specially convened meeting of Councillors following a High Court Order and misused their position to attack an independent environmental voluntary organisation and its members in a forum where they hid behind qualified privilege in a very cowardly manner, knowing that Environmental Trust Ireland could neither participate nor respond.
Access to Justice in Environmental Matters;
The requested information will improve access to justice in relation to planning decisions made by Limerick City & County Council and hold it, its staff and Councillor’s accountable to the public for the decisions that are made in environmental matters. Please see previous section on participation also.
The release of the information is a public interest matter and in the interest of fairness, accountability and transparency, all of the requested information should be released.
Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC
(20) Public authorities should seek to guarantee that when environmental information is compiled by them or on their behalf, the information is comprehensible, accurate and comparable. As this is an important factor in assessing the quality of the information supplied the method used in compiling the information should also be disclosed upon request.
Release of Information will result in better environment and Public Interest:
Openness, Transparency and Accountability in decision making benefits the public interests and will lead to a better environment.
Where voluntary environmental groups and the submissions they make in defence of the environment are subjected to unfair and unfounded public criticism under qualified privilege, there is an enhanced requirement that reasons and interests are fully disclosed to avoid a repetition of the unfounded allegations and repercussions and to avoid deterring public participation in environmental matters.”
13. The Council made the following submission to this Office on 15 July 2024:
“The following steps were taken in order to establish if lobbying took place which would fall within the scope of this request. From the outset, we have advised the requestor that it is the responsibility of the person who lobbies to register this on the Register of Lobbying. However, the requestor has asked us to establish if any staff or Councillor were lobbied by a number of named individuals from Cloncarragh investments in relation to proposed development at Punches Cross, Limerick.
The request was based on previous request whereby the internal appeal decision was annulled by the OEIC. Questions 5, 6 & 7 of the original request are the parts which are relevant to this request.
Q 5. LCCC response: The answer provided to the requestor was that Dr. Pat Daly CEO, Management Team and staff of the Planning department had all confirmed that they were not lobbied by any of the people referenced above.
a. The AIE Officer emailed all of Management Team, including Dr. Pat Daly, CE and all confirmed either by email or verbally that they had not been lobbied by any of those persons named in the request. The Chief Executive’s Office carried out electronic searches of the CE’s email and searched post file saved on sharepoint. All items received by post are scanned and saved in this folder. No records were found.
b. The AIE Officer emailed the request to the Administrative Officer, who is the point of contact in the Planning Department. He confirmed that he had consulted with the respective Area Planners, Senior Executive Planners and Senior Planner regarding contacts with the developers. All confirmed to him, that other than pre-planning meetings they did not have any contact with the developers. Pre-Planning meetings are a normal part of planning process and would not be classified as lobbying. The Administrative Officer also searched for records held on Sharepoint and only found records relating to pre-planning meetings, which were deemed to be outside the scope of this request.
Q 6. LCCC response: The answer provided to the requestor was that the planning file contained no record of lobbying from Councillors or other Politicians in relation to the Punches Cross Development.
I note that the requestor states that Q 6 was not limited to the Planning files. However, I would dispute that the only place we would record information relating to this development would be on the relevant planning file. As stated above the Administrative Officer in the Planning Department searched for records held on Sharepoint and only found records relating to pre-planning meetings, which were deemed to be outside the scope of this request.
Q7. LCCC response: The answer provided to the requestor was that all 40 councillors received email correspondence from Cloncaragh Developments and that they had confirmed that they had no other correspondence in this regard. I have just realised that the date referenced on my decision letter was 2019 and should in fact have been 2021. The records released to the requestor are as follows - email dated 16/04/2021 (Records 1-40 refer). All 40 Councillors received a second email on 16/04/2021 (Records 41-80 refer). 6 Councillors received another email on 19/05/2021 (Records 81-86 refer). These 6 Councillors were councillors for Limerick City West which is the electoral area where the Punches Cross Development is situated.
All 40 Councillors were emailed asking them if they had lobbied or had been lobbied in relation to the Punches Cross Development. Responses were provided either by email or in some cases verbally. I attach for your information copy of emails, email reminders and email responses received.
03/05/2024 email sent to all 40 Councillors – Copy attached
28/05/2024 reminder email to those Councillors had not yet responded – copies attached
Councillors responded by email confirming that they had received no other communication other than the ones provided to the requestor. They also confirmed that they had not lobbied on behalf of this company. Copies of these emails are attached. A number of Councillors confirmed verbally by way of phone call.
I note the reference the requestor has made in relation to limiting the search to emails only. However, as stated above the Administrative Officer in the Planning Department searched for records held on Sharepoint and only found records relating to pre-planning meetings, which were deemed to be outside the scope of this request. Hard copy files were also searched.
In addition to asking Councillors, Management Team and the Chief Executive the questions in the request, independent email searches were carried out through Mail Meter and the only correspondence found (apart from correspondence on Planning File) were the emails provided to the requestor.
The requestor asked 3 questions and was provided with the relevant records that were located. Their 3 questions were answered and we confirmed that we had confirmation from the Chief Executive, Management Team and the Elected representatives that they had neither lobbied or were lobbied, I can issue the requestor copy of those email communications if your office wishes me to do so.”
14. As set out above, in case OCE-139343-V1F5H1, I considered whether the Council was justified in refusing the appellant’s request and whether the Council had taken adequate steps in an effort to identify all relevant information. On 14 March 2024, I annulled the internal review decision of the Council and directed that a new internal review process be carried out under article 11 of the AIE Regulations.
15. The Council issued a fresh decision on 18 June 2024 to the appellant. This decision does not explicitly state the Council has carried out a fresh internal review, and says the decision can be appealed to the Council if the appellant is dissatisfied (rather than to the Commissioner).
16. For clarity, the legal effect of my decision of 14 March 2024 in OCE-139343-V1F5H1 to annul the internal review decision is that the Council was required to issue the appellant with a new internal review decision under article 11 of the AIE Regulations. Article 12(3) of the AIE Regulations allows for a decision made by a public authority under article 11 of the AIE Regulations to be appealed to my Office. Article 12(5) of the AIE Regulations provides that I may review the decision of the public body and affirm, vary or annul the decision concerned, specifying the reasons for my decision. I therefore consider that where I annul a decision of a public authority, this only has the effect of annulling the internal review decision, not the original decision.
17. I therefore take the decision issued on 18 June 2024 by the Council to be its new internal review. The appellant queried this point with this Office on 18 June 2024 – and a senior investigator from this Office confirmed “the decision issued in March only required the Council to provide a new internal review decision, so the appeal now lies to the Commissioner, rather than via internal review to the Council.”
18. This internal review dated 18 June 2024 was carried out by the same AIE Officer who issued the original decision dated 23 March 2023. Article 11 of the AIE regulations is clear that the public authority concerned shall designate a person unconnected with the original decision whose rank is the same as, or higher than, that of the original decision-maker.
Internal review of refusal
11.(1) Where the applicant’s request has been refused under article 7, in whole or in part, the applicant may, not later than one month following receipt of the decision of the public authority concerned, request the public authority to review the decision, in whole or in part.
(2) Following receipt of a request for a review under sub-article (1), the public authority concerned shall designate a person unconnected with the original decision whose rank is the same as, or higher than, that of the original decision-maker to review the decision and that person shall— (a) affirm, vary or annul the decision, and (b) where appropriate, require the public authority to make available environmental information to the applicant, in accordance with these Regulations. (my emphasis)
19. In this instance, the person who carried out the new internal review of 18 June 2024 is not a personunconnected with the original decision – as it is the same person who carried out the original decision.
20. As such, I consider the internal review to be invalid as it does not meet the requirements of article 11(2) of the AIE Regulations. Accordingly, the most appropriate course of action is for me to remit this appeal, and direct the Council once again to conduct a new internal review process in line with article 11 of the AIE Regulations. It is not appropriate at this stage for me to examine in full whether the Council was justified in refusing access to environmental information on the grounds that no further information was held by or for the authority concerned in the meaning of article 7(5) of the Regulations. However I will note that the decision issued by the Council does not contain any substantive detail on the searches carried out by the Council to respond to the appellant’s request.
21. When carrying out its new internal review process, regard should be had by the Council for the submissions of the appellant which I have set out in this decision. The Council may also wish to consider previous decisions of the Commissioner which provide guidance on the type of detail that would be expected in cases such as this e.g. Mr. F and Department of Agriculture OCE-147096-D1W0V4 , which is available on my website.
22. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision and direct it to conduct a fresh internal review process.
23. 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