Cinneadh
Dr Fred Logue and Environmental Protection Agency
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-122139-H8B8H5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-122139-H8B8H5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the EPA was justified in giving access to all information relating to a specified compliance investigation other than in the form and manner requested under article 7(3) of the AIE Regulations
1. This case refers to three different EPA systems. These are the Licence Enforcement Access Portal available at the EPA offices (the LEAP system), the Licence Enforcement and Monitoring Application system (the LEMA system), and the Licence Enforcement Access Portal Online (LEAP Online).
2. On 22 February 2022, the appellant submitted a request to the EPA seeking access to “[a]ll information on file for Certificate of Authorisation No A0522-01 (CoA) and the related Compliance File CI001469”. The appellant suggested that the information available online at the time of his request on the EPA website ( link provided ) was incomplete. He went on to note: “I would be grateful therefore to receive the full file for A0522-01 including CI001469 preferably in electronic format. In particular I would request the following to be provided immediately: [1] Copy of any application to amend the CoA [2] Copy of any decision to amend including results of EIA and/or AA (including any decision taken after the date of this request) [3] Copy of any other information by way of authorisation or consent from the EPA in respect of proposed works by Irish Water at the Kilronan Agglomeration wastewater treatment plant.”
3. On 7 March 2022, the EPA issued its original decision. The EPA explained that the application file for COA No. A0522-01 can be viewed by the public on the EPA website and that no application to technically amend or review the COA had been made. The EPA then went on to state that the “enforcement documentation and CI File No. CI001469” could be viewed by the public via the EPA’s LEAP system (available at the EPA offices in Wexford, Dublin, and Cork). The appellant responded the same day, noting that it was inconvenient for him to visit the EPA offices and asking if remote access or an extract of the file could be provided.
4. On 13 March 2022, the appellant sought an internal review of the EPA’s decision. The appellant noted he was seeking a copy of the compliance file in electronic format. He asked that the file be extracted and provided to him by email or that he be given remote access.
5. On 12 April 2022, the EPA issued its internal review decision. It provided background detail relating to its LEAP system and explained that it is not designed to allow for files to be downloaded and provided in electronic format or to allow for remote access. The EPA outlined that it was providing access to the information requested via the LEAP system by prior appointment at the EPA’s offices in Wexford, Dublin, and Cork, under article 7(3)(a)(i) and 7(3)(a)(ii) of the AIE Regulations.
6. The appellant submitted an appeal to this Office on 13 April 2022.
7. I am directed by the Commissioner for Environmental Information to undertake a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the EPA and the appellant as outlined above and to correspondence between my Office and both the EPA and the appellant on the matter. In addition, I have had regard to:
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. During the course of this review, the EPA explained that compliance investigation CI001469 is a subset of the overall compliance file for the Kilronan Cottages Agglomeration. The EPA outlined that a compliance file includes information regarding site inspections, complaints, incidents, monitoring returns, correspondence, and any associated compliance investigations. The EPA stated that a compliance investigation is opened when further information and/or action is required in relation to a compliance issue at a licenced site. The EPA noted that information relating to a compliance investigation includes a description, associated complaints, non-compliances, EPA actions/instructions, licensee submissions and attachments, and correspondence between the EPA and the licensee regarding the compliance investigation. The EPA explained that in the case concerned, the licensee failed to put in place an integrated construction wetland system, as specified in the wastewater discharge certificate, and identify appropriate improvements to the sewage system. The EPA stated that accordingly, it opened compliance investigation CI001469 to deal with this matter.
10. In light of the above and having regard to all of the correspondence between the EPA and the appellant as set out above, and the appellant’s submissions to this Office, I am satisfied that this review solely pertains to information relating to compliance investigation CI001469, rather than the overall compliance file and/or any other information related to the Kilronan Cottages Agglomeration. As stated by this Office’s Investigator to the appellant during the course of this review, should he wish to seek further information relating to the Kilronan Cottages Agglomeration / A0522-01, it is open to the appellant to make a fresh request to the EPA for such information.
11. The scope of this review concerns whether the EPA was justified in giving access to all information relating to compliance investigation CI001469 other than in the form and manner requested under article 7(3) of the AIE Regulations.
12. I wish to make a number of preliminary comments. First, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of this decision.
13. Second, it is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office, and not by the parties to the appeal.
14. Third, it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. This Office has no role in assessing how public authorities collect, maintain and disseminate environmental information. The role of this Office concerns reviewing appeals of requests for access to environmental information within the scope of a request, which is held by or for the relevant public authority and no more than that.
15. Finally, the appellant, in his submissions to this Office, asked that an oral hearing before the Commissioner be held, where he could also put questions to the EPA. Article 12(6)(a) of the AIE Regulations provides that the Commissioner may “require a public authority to make available environmental information to the Commissioner and, where appropriate – (i) require the public authority concerned to attend before the Commissioner for that purpose, and (ii) where the public authority is a body corporate, require its chief officer to attend.” I am satisfied that there is no express provision in the AIE Regulations for oral hearings before the Commissioner. However, while oral hearings are also not ruled out, should the circumstances warrant it, it is this Office’s general practice to make decisions based on written submissions. The Commissioner is satisfied that this meets the requirements of fair procedure. Having regard to the circumstances of this particular case and the written submissions made by both the appellant and the EPA, I am satisfied that this Office is not required to conduct an oral hearing as sought.
16. Article 6(1)(e) of the AIE Regulations provides that if an applicant desires access to environmental information in a particular form or manner, the request shall specify the form or manner of access desired. I am satisfied that in his original request the appellant sought access to information relating to compliance investigation CI001469 in electronic format and, in his internal review request, clarified that he would like the information to be extracted and provided to him by email or to be given remote access. Accordingly, I am satisfied that the appellant specified the form of access desired in accordance with article 6(1)(e) of the AIE Regulations.
17. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations. 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.
18. When relying on article 7(3) of the AIE Regulations, a public authority should generally carry out searches, identify the relevant information held by or for it, determine that the information should be released, and decide to give access to that information other than in the form or manner requested. Included in the reasons for the decision, the public authority should specify the information concerned and direct the requester to where it is already available to the public, and/ or how it can be accessed.
19. Article 7(3)(a) of the AIE Regulations seeks to transpose 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.
20. 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”.
21. 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.
22. The EPA purported to provide access to the information relating to compliance investigation CI001469 by way of viewing the information via its LEAP system by prior appointment at its offices in Wexford, Dublin, and Cork under article 7(3)(a)(i) and 7(3)(a)(i) of the AIE Regulations. During the course of this review, the EPA made submissions to this Office regarding its reliance on article 7(3) of the AIE Regulations. As this Office has already provided the appellant with those details, I do not propose to repeat them in full here. In short, the EPA provided significant detail regarding the operation of two systems relevant to compliance investigations – its LEMA system and LEAP system. In addition, it noted that it was then in the process of moving to LEAP Online (with Phase 1 completed and Phase 2 progressing) to provide for online access to the formal regulatory correspondence exchanged between the EPA and licensed operators (including holders of permits and other EPA authorisations).
23. The EPA explained that the LEMA system is a customer relationship management (CRM) system used internally by EPA staff. The EPA stated that compliance investigations are set up on the LEMA system and automatically given a reference number. It noted that the LEMA system holds all details relating to a compliance investigation, including a description, associated complaints, non-compliances, EPA actions/instructions, licensee submissions and attachments, and correspondence between the EPA and the licensee regarding the compliance investigation. The EPA explained that all correspondence between the EPA and the licensee regarding the compliance investigation is via the LEMA system. The EPA stated that the LEMA system links all the relevant aspects of a compliance investigation together.
24. The EPA stated that the LEAP system is a “viewer” which displays information. The EPA stated that the information on the LEAP system is automatically extracted from the LEMA system. It stated that the LEAP system publishes the information in a viewable format for public access via office-based PCs, apart from personal information. It noted that the LEAP system is set up so that selective extracts of data from the LEMA system are automatically published and it is refreshed nightly on a scheduled basis.
25. In respect of compliance investigation CI001469, the EPA stated that the compliance investigation was set up by an inspector on the LEMA system, which automatically gave it the reference CI001469. It noted that details of compliance investigation CI001469 are also available on the LEAP system for public viewing, apart from personal information.
26. In subsequent correspondence to this Office, the EPA explained that both Phase 1 and Phase 2 of LEAP Online are now live (notwithstanding that its website indicates that Phase 2 is still to be released). I understand that all of the information on the LEAP system relating to compliance investigation CI001469 is now available on LEAP Online. I note that members of the public must accept terms when accessing LEAP Online; however, having examined those terms, I am satisfied that they do not impose any restrictions on the right of access to environmental information provided for under the AIE Regulations in respect of any information that is available on LEAP online.
27. The question I must consider in this case is whether the EPA was justified in giving access to all information relating to compliance investigation CI001469 other than in the form or manner requested by way of viewing the information via its LEAP system by prior appointment at its offices under article 7(3)(a)(i) and 7(3)(a)(i) of the AIE Regulations. I appreciate that both the appellant and the EPA provided significant submissions to this Office setting out their positions regarding article 7(3) of the AIE Regulations. However, it is evident that the crux of this matter is that there is some information relating to compliance investigation CI001469 held on the LEMA system, which is not held on the LEAP system (e.g. personal information). In circumstances where all information relating to compliance investigation CI001469 is not on the LEAP system, I simply cannot find that the EPA’s decision under article 7(3)(a)(i) and 7(3)(a)(ii) of the AIE Regulations was justified.
28. In reaching this conclusion, I make no finding as to whether, had the appellant specifically been seeking the information that is on the LEAP system relating to compliance investigation CI001469, the EPA would have been justified under article 7(3) of the AIE Regulations in giving access to that particular information via the LEAP system at its offices.
29. In the circumstances of this particular case, I consider that the most appropriate course of action is to annul the decision of the EPA. I direct the EPA to give electronic access to the information relating to compliance investigation CI001469 that is on the LEAP system, all of which I understand is now on LEAP Online, by identifying and pointing the appellant to how and where he can access that information electronically. I also direct the EPA to conduct a fresh decision making process in respect of any information relating to compliance investigation CI001469 that is on the LEMA system which is not on the LEAP system and is not available on LEAP Online. In considering that information afresh, the EPA should identify all remaining information relating to compliance investigation CI001469 and determine whether or not it should properly be released. Should the EPA wish to refuse access to any of that information under article 8(a)(i) of the AIE Regulations (or indeed any other provision under articles 8 or 9) it must set out its reasons for reaching this conclusion and consider article 10 of the AIE Regulations.
30. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the EPA’s decision under article 7(3) of the AIE Regulations in this case. I direct the EPA to give electronic access to the information relating to the compliance investigation that is on the LEAP system. I also direct the EPA to conduct a fresh decision-making process in respect of any information relating to the compliance investigation that is on the LEMA system which is not on the LEAP system.
31. 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.
Deirdre Gallagher, on behalf of the Commissioner for Environmental Information