Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-114298-Q2G5R4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in giving access to certain planning documents other than in the form and manner requested under article 7(3)(a)(i) of the AIE Regulations.
1. On 18 August 2021, the appellant submitted a request to the Council seeking access to electronic copies of the planning documents relating to an identified planning reference number. He noted that the documents were publicly available on its ePlanning portal in JPEG or DJVU format, however, as he could not download and search the JPEG files or open the DJVU files, he asked that the documents be made available in PDF format on the ePlanning portal.
2. On 16 September 2021, the Council issued its original decision. The Council refused to give access to the planning documents sought in the form and manner requested (i.e. in PDF format on the Council’s ePlanning portal) on the basis that the planning documents were already in the public domain. In doing so, it noted that article 7(3)(a)(i) 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 the information is already available to the public in another form or manner that is easily accessible. It noted that planning documents are available for viewing at the Council’s public counter and enclosed a link to its online planning register.
3. On the same day, the appellant sought an internal review of the Council’s decision. On 11 October 2021, the Council affirmed its original decision to refuse to give access to the planning documents sought in the form and manner requested under article 7(3)(a)(i) of the AIE Regulations. It again indicated that the relevant planning documents were available at its public counter and online on its ePlanning portal in JPEG and DJVU formats. In respect of documents available on its ePlanning portal, the Council explained that it was using a version of an iDOCs system to upload documents, which had DJVU as the default format for scanning files. It noted that it was in the process of upgrading to a new version (version 3) of that iDOCs system, which would have PDF as the default format for scanning files.
4.The appellant appealed to my Office on 11 October 2021.
5. On 22 November 2021, the appellant outlined to my Office that, while he had requested that the planning documents sought be made available in PDF format on the Council’s ePlanning portal, he would be satisfied if the Council agreed to provide him with the files in PDF format by email or file transfer by 3 December 2021. On 23 November 2021, my Office asked the Council if it would be in a position to do so, however, in response, the Council stated that it was unable to convert the documents to PDF format. Accordingly, the appellant stated that he wished the review to proceed.
6. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the correspondence between the Council and the appellant as outlined above and to correspondence between my Office and both the Council and the appellant on the matter. In addition, I have had regard to:
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. The scope of this review is concerned solely with whether the Council was justified in giving access to the planning documents for an identified planning reference number, available on its ePlanning portal on the date of the appellant’s request, other than in the form and manner requested under article 7(3)(a)(i) of the AIE Regulations.
9. A review by my Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of my decision.
10. In its submissions to my Office, the Council outlined its position that it fully complies with its obligation to have planning applications accessible by making them available for public inspection and to view on line through its ePlanning portal. It appears to me that, in doing so, the Council was referring to an obligation under planning legislation. In the circumstances and given the nature of the documents sought in this case, it is relevant to note that, in accordance with article 4(2)(a) of the AIE Regulations, the AIE Regulations apply to environmental information which is required to be made available to the public, whether for inspection or otherwise under section 38 of the Planning and Development Act 2000 (No. 30 of 2000) (as amended) and regulations made thereunder. Having regard to the Minister’s Guidance, I understand that this is to ensure that any restrictions in that planning legislation, for example in relation to time limits within which registers and/or documents can be inspected, will not operate so as to limit the powers to access information under the AIE Regulations.
11.. 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. In this case, the appellant requested access to the electronic copies of the planning documents for an identified planning reference number (available on the Council’s ePlanning portal on the date of his request) in PDF format on the ePlanning portal. Accordingly, I am satisfied that that the appellant specified the form and manner of access desired in accordance with article 6(1)(e) of the AIE Regulations.
12. Article 7(3)(a)(i) 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 the information is already available to the public in another form or manner that is easily accessible. Article 7(3)(a)(i) of the AIE Regulations seeks to transpose Article 3(4)(a) 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 it is already publicly available in another form or format which is easily accessible by applicants.
13. During the course of this review, both parties made submissions to my Office regarding the documents sought that were publicly available at the time of the appellant’s AIE request. The appellant contended that, while the documents were available in hard copy at the Council and online in JPEG and DJVU formats, they were not in a form or manner that was easily accessible; the Council contended that they were.
14. However, in its submissions to my Office, the Council also stated that in accordance with section 37 of the Planning and Development Regulations (2001-2022), the planning application to which the documents sought relate had been withdrawn on 13 January 2022. It outlined that when a planning application is withdrawn no decision is made by the Council and documents are no longer available to the public. It explained that, as the relevant planning application had been withdrawn, related documents were no longer available in any format.
15. Indeed, having examined the ePlanning portal in respect of the identified planning reference, I note that only four withdrawal documents, all dated 13 January 2022, are available to view in the scanned documents section and no planning documents dated up to and including the date of the appellant’s request (18 August 2021) are available. The Council provided no detail to my Office as to how the planning documents originally sought might now be accessible to the appellant.
16. As outlined above, a review by my Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of my decision. While I appreciate that the documents sought were already available to the public in hard copy at the Council and online in JPEG and DJVU formats on its ePlanning portal, both at the time of the appellant’s AIE request and appeal to my Office; having regard to the Council’s submissions it is my understanding that this is no longer the case.
17. In order for article 7(3)(a)(i) of the AIE Regulations to apply, the information sought must be both already available to the public and easily accessible. In circumstances where the documents originally sought are no longer available to the public in any format, I cannot find that the Council has justified its decision under article 7(3)(a)(i) of the AIE Regulations. In reaching this conclusion, I make no finding on whether the documents already available to the public at the time of the appellant’s AIE Request (either in hard copy or online in JPEG and DJVU formats on the ePlanning portal) were easily accessible.
18. I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council in its entirety, the effect of which is that the Council must consider the appellant’s request afresh and make a new, first instance decision in accordance with the provisions of the AIE Regulations.
19. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Council’s decision to give access to the planning documents sought other than the form and manner requested under article 7(3)(a)(i) of the AIE Regulations. I direct the Council to conduct a new decision-making process in respect of the appellant’s request.
20. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Ger Deering
Commissioner for Environmental Information