Case number: CEI/09/0005
In accordance with article 12(5) of the Regulations, the Commissioner reviewed the decision of the Board and found that it was justified in its decision to refuse the request. However, she varied the basis for the decision. The Commissioner was not satisfied that the Directive or the Regulations gave her jurisdiction to direct a public authority to release information in records which had not been created at the time the appellant made the request.
She also found that the provisions of Article 4(1) apply to the information sought as it is required to be made available to the public under another statutory provision i.e. Section 146(3) of the Planning and Development Act, 2000, as amended.
The Appellant made a request to the Board on 23 March 2009 for "digital copies of the transcripts of the hearing into the Metro North ... as soon as they are received by the Board". He said that he required "an undertaking that the information would be available by 27 March 2009". In its decision of 27 March 2009, the Board refused access on the basis of Article 9(2)(c) of the Regulations; it said that the request concerns material in the course of completion. The Appellant then sought an internal review of the decision on 28 March 2009 and the Board issued its internal review decision on 3 April 2009, affirming its original decision. The Appellant submitted an appeal to this Office on 6 April 2009; the appeal was accepted on 30 April 2009 following receipt of the appropriate fee and confirmation that the appeal was valid.
In submitting his appeal on Monday 6 April 2009, the Appellant sought a decision from me by close of business on Friday 10 April 2009 (Good Friday). My staff made it clear to him that there was no possibility of a decision issuing in that timeframe nor was it possible to say when a decision could be expected to issue, as the extent or complexity of the issues which might arise in the appeal were not known at that time. He chose to proceed with the appeal. In arriving at my decision, I have taken account of the submissions of the Appellant and the Board and of the legislation governing access to environmental information i.e. the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive).
My investigator sent her preliminary views to the Board and to the Appellant on 17 December 2009. No response was received from the Appellant and the Board replied indicating that it had no objection to the preliminary views. Therefore, I have decided to bring this appeal to a conclusion by way of a formal binding decision.
By way of setting the matter in context, it is worth noting that, at the time of the Appellant's request, the oral hearing into the determination of a Railway Order application in respect of Metro North had not begun; it was scheduled to commence on 1 April 2009.
Apparently, a stenographic record of such hearings is taken on an ongoing basis and written and digital transcripts are supplied to the Board normally within 2 to 3 days of the close of proceedings. According to the Board, the purpose of such transcripts is to aid the reporting inspector in the assessment and to inform the Board's eventual decision. The relevant legal provisions for oral hearings are contained in the Planning and Development Acts, 2000 to 2006 and the Board has a document entitled "Guidelines on Procedures at Oral Hearings". I note that it is a matter for the inspector and/or the Board to decide what, if any, form of recording is appropriate to assist in making a recommendation/ decision and that the participation of parties is subject to the relevant planning legislation. While the inspector has discretion as to the conduct of an oral hearing, any submissions made to the hearing are to be available to participants and any member of the public as well as those who have sought to participate may attend the hearing. I note also that in this particular case the Railway Procurement Agency (RPA) made available on its website copies of its evidence to the hearing.
The subject matter of this appeal is very similar to that in Case Number CEI/09/0007 with which I am dealing, in that it also relates to access to transcripts of the oral hearing into Metro North.
This review is concerned solely with whether the Board's decision to refuse access to the transcripts was justified under the Regulations.
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.
I consider it useful to set out the provisions of the Regulations which are relevant to this appeal; I have also considered the relevant provisions of Directive 2003/4/EC:
Certain relevant terms are defined in Article 3, as follows:
“environmental information held by a public authority” means environmental information in the possession of a public authority that has been produced or received by that authority;
“environmental information held for a public authority” means environmental information that is physically held by a natural or legal person on behalf of that authority;
Article 4 of the Regulations provides as follows:
(1) 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.
(a) section 38 of the Planning and Development Act 2000 (No. 30 of 2000)
and any regulations made thereunder,
(b) sections 10 and 31 of the Air Pollution Act 1987 (No. 6 of 1987) and
any regulations made thereunder, and
(c) sections 6 and 89 of the Environmental Protection Agency Act 1992
(No. 7 of 1992)(as amended by the Protection of the Environment
Act 2003 (No. 27 of 2003)) and any regulations made thereunder,
environmental information held by, or on behalf of, a public authority shall be
made available in accordance with these Regulations.
Article 9(2)(c) provides as follows:
(2) A public authority may refuse to make environmental information available where the request -
(c) concerns material in the course of completion, or unfinished documents or data
Article 10(6) provides as follows:
(6) Where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the Applicant of the name of the authority preparing the material and the estimated time needed for completion.
The Appellant argued that once the Board has received the information it is in its final form and will not be modified. He said that none of the provisions whereby Member States are allowed to provide for a refusal of a request could possibly apply even in "the most extreme or invalid interpretation". He referred to the requirement that environmental information be made available as soon as possible and within a reasonable time having regard to any timescale specified by the Applicant. In his appeal he said that, as the hearing was ongoing, he required time to take any legal action that might be required should his request be refused.
The Appellant also raised the provisions of Article 10(6) in his appeal. I am satisfied that the Board is responsible for preparing the material sought and has clearly indicated in its internal review decision, when a decision in the matter can be expected, subject to the progress of the oral hearing. I am satisfied that the Board has complied with the requirements of Article 10(6).
Before examining whether any of the exceptions cited apply in this case, I consider it necessary to establish whether the Regulations or the Directive allow me to direct the Board as to the timing of release of "future'' records such as those sought. I realise that if I find that the Appellant is entitled to the transcripts on the basis sought by him, there would appear to be no reason why other persons would not have similar entitlements in respect of future oral hearings and transcripts yet to be prepared. I would comment that there is nothing to prevent the Board from changing its procedures and issuing the information sought as it becomes available or within some agreed or published timeframe prior to the point at which it is required by law to be made available. The question is however, whether it is within my jurisdiction under the Regulations to require the Board to so do. What the Appellant requires is that I give directions to the Board in regard to information that was not held by it at the time of the making of the request which gave rise to this appeal.
"Environmental information held by a public authority" is defined in the Regulations and in the Directive as '' information in the possession of a public authority that has been produced or received by that authority" . At the time the appellant made his request the information sought had neither been produced nor received by the Board.
While the Directive and the Regulations deal with the response time to requests and the need to have regard to any timescale specified by the applicant, there is generally a period of one month (two months in certain circumstances) allowed for a public body to provide the information. This would indicate to me that the right of access is to information existing at the time of the request and capable of being examined and assessed before being released . While it is unlikely in this particular case that the content of transcripts would fall to be refused by reference to their content given that the information would have been disclosed in a public forum, it is conceivable that, for instance, sensitive personal information might be inadvertently disclosed to a hearing without the individual realising that unrestricted release and circulation of the transcript was a possibility. Therefore, it seems to me that one would have to at least allow for the possibility that a public authority could, prior to release, examine a transcript in the light of the exceptions allowed in the Regulations . It seems to me that the Regulations and the Directive could not have intended that public authorities would be obliged to produce copies of information not held at the time of the making of the request, and that this would be the effect if I were to direct the Board to release the information sought by the appellant in the manner sought by him.
My finding is that nothing in the Directive or in the Regulations requires the Board to give an undertaking of the kind sought by the Appellant in advance of the public authority actually having the information in its possession when the request was made in accordance with the right under Article 3 of the Directive and Article 6 of the Regulations. It is clear that although other parts of the Directive deal with dissemination of environmental information in a wider context, my jurisdiction is confined to the provisions in respects of requests for environmental information under the Directive and the Regulations which do not provide for undertakings as to the making available of environmental information not already produced or received by the public authority.
As I have found that I cannot direct the release of the information as sought by the ppellant that is, strictly speaking, the end of the matter. However, I consider it useful to look at the provisions of Articles 4(1) and 4(2) of the Regulations in the context of this appeal and the rights of the Appellant. It has not been disputed that the information the subject of the appeal is required to be made available to the public under the Section 146(3) of the Planning and Development Act, 2000 whereby all documents relating to an appeal or to a decision of the Board are made available for inspection and purchase within 3 days of the decision in the case. Section 146(4) requires that such documents be made available for a period of at least 5 years.
Article 4(1) does not make any reference to circumstances where other legislation specifies the timing of the release of the information. Further, it could be argued that the information in any transcript is freely available to any member of the public who attends the hearing. Indeed, it is available to all attendees simultaneously. Therefore, what is at issue in relation to the transcripts is more a matter of format and timing of release than the principle of access to the information itself.
The provisions of Article 4(2) have the effect of dis-applying the provisions of the sections of the Acts specified at 4(2)(a), (b), and (c). As Section 146(3) of the Planning and Development Act, 2000 is not one of those specified, Article 4(2) has no effect in the particular circumstances of this appeal.
As the information sought by the Appellant is required to be made available under another statutory provision i.e. Section 146(3) of the Planning and Development Act, 2000 (as amended),
I am satisfied that the provisions of Article 4(1) apply to the information sought.
I recognise that , from the Appellant's point of view, this availability comes too late. However, as explained above, I can find nothing in the scheme of the Regulations or the Directive which would give me jurisdiction to direct the Board to undertake to make information available into the future when, at the time of the request, it has not yet been created and thus, is not held by a public authority.
It could be argued that the effect of Article 4(1) of the Regulations is to restrict the impact of the Directive in respect of environmental information which is already covered by a domestic statutory provision. However, the making available and dissemination of environmental information in such a manner that a request under Article 3 is not necessary is clearly envisaged by Article 7 of the Directive. Neither the Directive nor the Regulations appear to provide specifically for the timing of the availability of such environmental information as the recordings of ongoing hearings. The feasibility of providing what is sought by the Appellant either through establishing a statutory right or simply adopting the practice are clearly matters which would have to be considered by the Board and by the relevant Government Department and are outside of my remit as Commissioner.
The Board refused access to the information sought on the basis of Article 9(2)(c) of the regulations. Given my findings above, it is not necessary in this case to consider whether the transcripts of each day's hearing comprise material still in the course of completion and, if they do, whether the exception to release should be set aside in the public interest. Neither do I find it necessary to consider any of the other provisions of the Regulations.
In accordance with article 12(5) of the Regulations, I have reviewed the decision of the Board in this case and I find, for the reasons set out above that it was justified in its decision to refuse the request. However, I vary the basis for the decision in accordance with the findings detailed above.
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, in accordance with Article 13 of the Regulations. Such an appeal must be initiated not later than two months after notice of the decision is given.