Case number: CEI/09/0004
In accordance with article 12(5) of the Regulations, the Commissioner reviewed the decision of the EPA and found that the EPA was justified in its decision to refuse the request. However, she varied the basis for the decision and found that the provisions of Article 7(3) apply to the information sought which is held by the EPA and that the provisions Article 7(5) apply to the information which is not held. In addition, she commented on the making available of information for public viewing.
The Appellant made a request under the Regulations to the Environmental Protection Agency (the EPA) on 15 October 2008, for access to :
"1- the report carried out by an EPA inspector following his visit to [the Appellant's] farm in March 2008
2- In relation to each of [the Appellant's] complaints on 27 separate dates between 29 August 2007 and 1 May 2008,
(a) the information requested by the EPA to Aughinish Alumina on air emissions
(b) Aughinish Alumina reply to EPA
(c) the EPA's own assessment of the data and reports supplied to them by Aughinish
(d) the EPA's own assessment and investigation of each complaint."
In its original decision of 14 November 2008, the EPA refused access under Article 4(1) of the Regulations on the basis that the Regulations do not apply to information that is required to be made available to the public, whether for inspection or otherwise, under any other statutory provision. It advised the Appellant of the relevant public files and its arrangements for viewing of files. In addition, 21 documents which were not available on the relevant public files were released. These included records relating to the first part of the request. The Appellant then sought an internal review of the EPA decision in relation to Items 2(a) - (d) of his request. The EPA, in its internal review decision of 15 January 2009, affirmed the original decision.
The Appellant appealed to this Office on 22 February 2009 and his appeal was accepted.
In reviewing this case, I have taken account of the following:
My review is concerned solely with the question of whether the EPA's decision to refuse access to environmental information was justified under the Regulations. The 21 records already released by the EPA are not considered to be within the scope of the review.
The Regulations set out the circumstances in which an appeal may be made to the Commissioner. Under Article 12(3), an appeal may be made against a decision of a public authority under Article 11, i.e. against an internal review decision. In turn, a request for an internal review under Article 11 must relate to a request which has been refused under Article 7 which provides for the action to be taken on a request for environmental information. Therefore, the scope of the review by the Commissioner is limited to that of the original request. In this appeal, the review deals with the information sought under Items 2 (a) to (d) only as the internal review request, under Article 11, only deals with this part of the request.
Given the content of some of the Appellant's submissions in this appeal, I wish to emphasise at the outset that it is outside my remit as Commissioner for Environmental Information to adjudicate on how public authorities carry out their functions generally. This means that my Office does not have the authority to investigate complaints against public authorities or to provide an alternative dispute mechanism with respect to the administrative actions taken by public authorities. I have no jurisdiction to ''act against the EPA'' as suggested by the Appellant in relation to its handling of the complaints.
For convenience, the key legal provisions relevant to this appeal are set out below.
Article 4(1) of the Regulations provides as follows:
These Regulations apply to environmental information other than, subject to sub-article (2), information that, under any statutory provision apart from these Regulations, is required to be made available to the public, whether for inspection or otherwise
Article 7(3) provides as follows:
(3) (a) 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.
(b) Where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefor shall be given by the public authority in writing.
Article 7(5) provides:
(5) Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.
Article 12(5) sets out the functions of the Commissioner and Article 12(6) provides for what the Commissioner may do for the purposes of dealing with an appeal, as follows:
(5) Following receipt of an appeal under this article, the Commissioner shall—
(a) review the decision of the public authority,
(b) affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and
(c) where appropriate, require the public authority to make available environmental information to the applicant, in accordance with these Regulations.
(6) The Commissioner may, for the purposes of this article, do any of the following:
(a) 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,
(b) examine and take copies of any environmental information held by a public authority and retain it in his or her possession for a reasonable period,
(c) enter any premises occupied by a public authority and there require to be furnished with such environmental information as he or she may reasonably require, or take such copies of, or extracts from, any environmental information found or made available on the premises.
In its original decision, the EPA refused access to the information sought on the basis of Article 4(1). In order to be satisfied that this provision did properly apply, my Investigator asked the EPA to identify the particular statutory provision under which it was required to make the information sought by the Appellant available to the public. The EPA advised that it was obliged to provide access to its licensing files under Article 23 of the Environmental Protection Agency (Licensing) Regulations, 1994 (SI No 85 of 1994), as amended by the Environmental Protection Agency (Licensing) Regulations, 1995 (SI No 76 of 1995) (EPA Regulations). On examination of these EPA Regulations, my Investigator was not satisfied that the information sought in this request was in fact required to be made available under these EPA Regulations which appear to specify material relating to licence applications only. Following further communications with the EPA, it accepted this to be the case and advised that the information identified as being on the public file is there as an administrative arrangement rather than on foot of any statutory requirement. Therefore, I am satisfied that the provisions of Article 4(1) of the Regulations do not apply to the environmental information sought.
The EPA submitted that Article 7(3) of the Regulations, set out above, would be more appropriate in this case. At all stages in dealing with this request and appeal, the EPA has said that the licensing files were available for public viewing. It provided copies of its "Procedure for Public Viewing of Files". In the Appellant's appeal to this Office, he made the point that the EPA failed to advise if the actual information sought was on the public files. In order to address this issue, the EPA was asked if it held records relating to Item 2 of his request and if these items were on the relevant public files, identified in its original decision. The EPA was also asked to provide this Office with a schedule identifying the records relevant to the request and its position on the release or otherwise of these records.
In its response, the EPA provided a schedule as requested showing details of records held for each of the Appellant's complaints in relation each part of his request. From the schedule, it was clear that no records were held in relation to some of parts of the request. This had not been made clear by the EPA in either its original or internal review decision although I must point out that both decisions referred to "information that the EPA has in its possession in relation to activities for which it has granted an IPPC licence.... is made available for public inspection". The EPA did not at any stage give the impression that all of the information sought was actually held by it. The EPA advised my Office that it would not necessarily have records relating to the assessment of all such complaints and that it had requested the Appellant in 2007 to submit any further complaints by post (by telephone if an urgent matter arises) rather than by email. It says that all records it holds on items 2(a)-2(d) of the request have been made available.
There appears to be some confusion as to what information is placed on the public file in regard to complaints made about the operation of a facility by a licensee. The EPA's publication "Procedure for Public Viewing of Files" says that public access is available to information on enforcement of licences including all correspondence from the licensee, the EPA and third parties. The procedures further say that 'complaints relating to the facility' are included. However, the description of the 21 records released to the Appellant - which were apparently not on the public file - includes correspondence from the EPA to the licensee as well as internal memoranda and information relating to a complaint. I do not consider that this is evidence of any intent to conceal information; nonetheless it may point to a need to clarify for the public the circumstances whereby, for whatever reason, not all records relating to complaints are on files available to it.
A public authority may effectively refuse access to a request by reference to Article 7(5) of the Regulations which requires it to inform an applicant if it does not hold the information the subject of the request. Article 3 of the Directive requires public authorities to make available environmental information held by or for them. Paragraph 1(a) of Article 4 of the Directive allows for the provision by Member States for a refusal of a request where the information is not held for or by the public authority to which the request is addressed. It goes on to provide that where that public authority is aware that the information is held by or for another public authority, it shall transfer the request.
I note that the Directive has its origins in the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). "The Aarhus Convention: an Implementation Guide" [ECE/CEP/72] says that if the public authority does not hold the information requested, it is under no obligation to secure it. It goes on to suggest that failure to possess environmental information relevant to a public authority's responsibilities might be a violation of Article 5, paragraph 1(a) of the Convention which relates to the requirement that public authorities collect, possess and disseminate environmental information.
A similar though not identical provision in relation to records ''not held'' exists in Section 10(1)(a) of the FOI Acts. As Commissioner for Environmental Information, I am guided in my approach by the Office of the Information Commissioner's experience over the past 11 years. In cases where the public authority claims not to hold the environmental information requested, I consider that my role is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public authority in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the information along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the information in question. On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the information is not held for or by the public authority. It is not normally the my function to search for records.
The Information Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In his decision, Mr. Justice Quirke stated: "I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision".
I consider that as Commissioner for Environmental Information, I am primarily concerned with ensuring public access to extant records in accordance with the provisions of the Regulations and the Directive. The Regulations do not provide for a right of access to records which ought to exist. Therefore, I do not have the authority to require a public authority to create records where such information records does not already exist or is not held by it.
In relation to the interpretation of Article 7(5) of the Regulations, I think that it is reasonable for me as Commissioner for Environmental Information to take a similar approach to that developed and approved by the High Court under FOI.
I am satisfied that the EPA has made available all information held by it, and that Article 7(5) applies to those aspects of the request for which information was not provided.
Apart from that information that is not held and given that the EPA has advised that the information sought is on the public file and that any information not on the public file has been released to the Appellant, I am satisfied that the provisions of Article 7(3)(a), set out above, apply in this case. While no particular form or manner of access was specified by the Appellant in his original request, I consider it reasonable for the EPA to take the view that as the information is available on publicly available files, it should not be required to make the information available in another form. I consider that under the relevant Directive and the Regulations, it would not be reasonable to expect public bodies to provide individual copies of information which is publicly available in another form or manner of access. I note also that the EPA procedures provide for the copying of documents by members of the public who inspect its files. In my view, the Directive and the Regulations generally provide a right of access to information not otherwise available.
In accordance with article 12(5) of the Regulations, I have reviewed the decision of the EPA in this case and I find, for the reasons detailed above that it was justified in its decision to refuse the request. I, therefore affirm the decision. However, I hereby vary the basis for the decision and find that the provisions of Articles 7(3) apply to the information sought which is held by the EPA and that the provisions Article 7(5) apply to that information which is not held.
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 is given.
Commissioner for Environmental Information
28 October 2009