Cinneadh
Ms H and Commission for Communications Regulation
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-143493-X7D8B2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-143493-X7D8B2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether ComReg was justified in refusing access to information under article 7(5) of the AIE Regulations on the grounds that the requested information is not held by or for it
7 April 2025
1. On 11 August 2023, the appellant submitted a request to the Commission for Communications Regulation, (ComReg), seeking access to the following:
“A copy of the data regarding breaches in 2021 supplied by Mr. Robert Mourik, chairman, ComReg, to Deputy Cathal Crowe TD – following his attendance at joint Committee on Transport and Communication debate – Wednesday 23 February 2022.
On the transcript of this debate it is recorded that Deputy Crowe asked Mr. Mourik to “Supply us with some data on the level of breaches in the country last year?”.
Mr. Mourik replied - “absolutely”.
Under AIE regulations, I am requesting a copy of the above reference data provided by Mr. Mourik to Deputy Crowe in electronic format”.
2. On 11 August 2023, ComReg contacted the appellant by email and informed her that the request did not appear to fall within“the ambit of the Access to Information on the Environment Regulations, and would be better made as a Freedom of Information Request”. ComReg queried if it should treat the request under the FOI Act 2014.
3. On 11 August 2023, the appellant responded to ComReg and stated“The referenced committee debate in which the question occurred was a section discussing health and safety, ICNIRP, and WHO etc, as I recall, between Deputy Crowe and Mr. Mourik. This is available online in transcript form. So I assumed the referred to breaches was also within that context – and ComRegs regulatory role in telecommunications mast emissions”.
4. On 21 August 2023, ComReg confirmed it would process the request under the AIE regulations and sought clarifications stating;
“From the transcript we note the request from Deputy Crowe
“I do not expect it today because I am just throwing it at Mr. Mourik but, on another day, could he supply us with some data on the level of breaches in the country last year?”
This was responded to by Mr. Mourik
“…I will say that we generally find the mobile phone operators operate at around a single percentage point of the norm. There is a lot of headroom between the emissions of the mast and what is considered to be safe by the ICNIRP. In general, we can rest assured that in Ireland the emissions from the various masts are safe. I can supply the Deputy with that information separately”.
Can you confirm that this is the information you are looking for?”
5. On 21 August 2023, the appellant responded to ComReg stating“I can confirm that is the required information as per transcript below”.
6. On 10 September 2023, the appellant requested an internal review as she had not received a decision within the statutory timeframe of one month.
7. On 11 September 2023, ComReg acknowledged the AIE request and apologised for the delay in issuing the acknowledgment.
8. On 22 September 2023, ComReg issued a decision stating;
“As detailed on ComReg’s website, and as noted to Deputy Crowe, all telecoms network operators in Ireland must ensure that non-ionising radiation emissions from their networks do not exceed limits established by the International Commission on Non-Ionising Radiation Protection (ICNIRP). ComReg currently monitors compliance by the network operators with this obligation. ComReg does not set non-ionising radiation limits and its role is limited to ensuring that non-ionising radiation limits are complied with.
The relevant information referred to by Mr. Mourik is set out in non-ionising radiation measurement reports, all of which are publicly available and can be assessed online at Siteviewer. These are reports of measurements of non-ionising radiation undertaken at various mobile telephony and other wireless transmission sites throughout the country. To date, all such reports indicate compliance by the network operators within the ICNIRP limits”.
9. On 25 September 2023, the appellant requested an internal review as“the information received does not answer my initial question and information requested”.
10. On 23 October 2023, ComReg issued its internal review decision. In doing so, it affirmed its original decision and stated that:
“For clarity, to date, over 1400 sites have been surveyed and non-ionising radiation levels at all sites have been found, without exception, to fall well below the international limits for public exposure set by ICNIRP.
To reiterate, ComRegs only role in this area is to ensure that operators meet their licence conditions by ensuring that emissions from licensed radio transmitters do not exceed the current international guidelines on non-ionising radiation as produced by ICNIRP”.
11. The appellant submitted an appeal to my Office on 1 November 2023 stating, “I requested data on breaches-as per PAC debate attached-requested by Deputy Crowe TD from chairperson of ComReg. I was not given this environmental information. I was directed to their website”.
12. On 6 November 2023, ComReg was notified of the acceptance of the appeal by the appellant and requested to provide a submission.
13. I am directed by the Commissioner to carry out a 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 by ComReg. 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).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
14. 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.
15. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether ComReg has taken all reasonable steps to identify the requested information.
16. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request.
17. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
18. The appellant maintains that ComReg failed to provide the requested environmental information as sought in the original request. The appellant argues that the reference made by Mr. Mourik during the Joint Committee on Transport and Communication debate implied the existence of specific data on breaches in 2021. The appellant contends being directed to general non-ionising radiation measurement reports online did not satisfy the request, which specifically sought data relating to breaches, not general compliance data.
19. In its submission dated 18 December 2023 ComReg confirmed comprehensive searches were conducted of its records and stated;
“correspondence issued from Mr Mourik to Mr Kieran O’Donnell TD, Chairperson of the Joint Committee on Transport and Communications dated 23 March 2022. This correspondence addressed several issues discussed during the Oireachtas Debate and in respect of which further information had been sought. This correspondence addressed issues such as nuisance communications, consumer related enforcement activity and listed the enforcement actions taken by ComReg on foot of investigations by its Consumer Division. It also addressed ComReg’s role in relation to the regulation of the ie domain registry and legislation relating to this. However, the response did not contain data on the level of breaches in the country in any year including in 2021 (the timeframe of the AIE Request). This is because there had been no recorded breaches. For the purpose of clarity we confirm that ComReg did not issue any other letter to Joint Committee on Transport and Communications other than the letter dated 23 March 2022”.
20. ComReg explained during the Oireachtas debate, Mr. Mourik referred to general information regarding non-ionising radiation levels and compliance with ICNIRP guidelines. ComReg clarified while general compliance information is publicly available, no specific data relating to breaches exists because no breaches were recorded during the requested timeframe. ComReg stated in an email dated 04 April 2025,“ComReg publishes non‐ionising radiation measurement site survey reports and quarterly summary reports on its website. The fact of publication of these reports is widely known by ComReg staff in the team and was known to both the original Decision-Maker and the Internal Reviewer. The Internal Reviewer is familiar with the quarterly reports and was aware that the reports have never indicated any non-compliance with the ICNIRP Exposure Limits” . Additionally, ComReg directed the appellant to where the published reports were available which confirmed there were no instances of noncompliance.
21. Further clarification was provided by ComReg“it is ComReg’s position that no data on breaches was provided by ComReg to Deputy Crowe TD following the Oireachtas Debate on the basis that no such data exists and, therefore, the precise information sought by the Appellant does not exist. While other information was provided by ComReg to Deputy Crowe TD by letter dated 23 March 2022 (as described above) none of this information relates to data on breaches and is therefore out of scope of the request and appeal”.
22. ComReg submits that its role is to ensure compliance with ICNIRP guidelines by licensed operators and its measurement reports indicate no instances of non-compliance. ComReg noted that the specific information sought by the appellant did not exist and it directed the appellant to where information demonstrating that no breaches had occurred was available.
23. On 19 February 2025 this Office contacted the appellant and provided her with details on ComReg’s submission. On 02 March 2025 the appellant provided a further submission to this Office in which she stated“I believe that it is reasonable to believe that any member of the public reading this transcript would assume as I did that this information was provided to the Deputy with due regard to the request made and the assurance given that this information would be supplied” . The appellant also stated;“There is a commitment made by a Commissioner of ComReg on public record in an Oireachtas committee to supply information. It is reasonable to assume that such information would be provided. With due regard to this fact I do believe that it is reasonable to query if adequate steps were taken to identify and locate the information. No search details were provided”.
24. In this case the appellant made a very specific request for“A copy of the data regarding breaches in 2021 supplied by Mr. Robert Mourik, chairman. ComReg, to Deputy Cathal Crowe TD” . ComReg have confirmed correspondence issued to the Chairperson of the Joint Committee on Transport and Communications but this correspondence did not“contain data on the level of breaches in the country” as there have been no recorded breaches. ComReg provided this office with a copy of the letter, which issued from ComReg to the Chairperson of the Joint Committee on Transport and Communications on 23 March 2022, and it did not contain any references to breaches.
25. The appellant maintains during the debate“there was an assurance given that data for breaches would be supplied, thus implying that such data did exist” . My role concerns reviewing appeals of requests for access to environmental information within the scope of the request, which is held by or for the relevant public authority and no more than that. If the information sought is not held by or for the public authority then that is the end of the matter, regardless of whether or not the requester believes that the information ought to exist based on the implied existence of breaches.
26. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm the decision of ComReg under article 7(5) of the AIE Regulations.
27. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information