Case number: CEI/09/0006

Appeal to the Commissioner for Environmental Information

Case CEI/09/0006

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Percy Podger and Associates on behalf of Hands Across the Corrib Ltd, French Furze House, Kildare, Co. Kildare (the appellant)

Public Authority: An Bord Pleanála (the Board)

Issue: Whether the Board was justified in its refusal of access to environmental information sought by the appellant. The information sought was a transcript of the oral hearing held into the proposed Galway Outer City By-Pass

Summary of Commissioner's Decision:

In accordance with article 12(5) of the Regulations, the Commissioner reviewed the decision of the Board and found that by reference to Articles 4 and 7 of the Regulations, the Board was not required in the circumstances of this case to provide the transcript which it did not hold . She found that its decision to refuse the request should have given reasons as to why the information was being provided in a format other than that requested and that it should have taken steps to ensure the easy accessibility of the information in the alternative format. Given the furnishing to the appellant in November 2009 of accessible versions of the information in audio format, she did not give any further directions to the Board.

Background

On 11 February 2009, the Secretary of Hands Across the Corrib Limited sought from the Board a transcript of the oral hearing into case reference PL07 ER2056 relating to the Galway City Outer By-Pass. The Board made its decision on 17 February 2009, effectively refusing the request and stating that "a transcript of the hearing has not and will not be made". The appellant, on behalf of Hands Across the Corrib Limited, sought an internal review of the decision. He said that his clients were in immediate need of the transcript in order to make their case in judicial review proceedings. He required the information in hard copy and CD. He said it was unreasonable to expect the Court to listen to 17 days of oral hearing (later it emerged that there was an audio record of 21 days). He also argued that ''undertakings'' had been given by the Board that a transcript would be supplied. He made reference to a previous oral hearing on a related project in which there had been a long delay in providing the transcript. On 19 March 2009, the Board issued its internal review decision affirming its original decision. It said that it did not have the transcript and that at no time did it prepare one. That decision was appealed to my Office and the appeal was accepted following payment of the statutory fee on 17 April 2009.

In arriving at my decision, I have taken account of the submissions of the appellant and the Board and of the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive).

Scope of Review

This review is concerned solely with whether the Board's decision was justified under the Regulations. The Regulations set out the circumstances in which an appeal may be made to me. 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. The appellant has raised issues as to how the Board dealt with him in relation to the oral hearing including the question of public participation in relation to the proceedings. Some of these matters are outside my jurisdiction as Commissioner. In addition, I do not think it would be appropriate for me to respond in detail in this decision to the Appellant's derogatory comments about my Office other than to say that the investigation was carried out thoroughly and within jurisdiction. I accept that the review process took longer than I would have liked and my Office has apologised for the delays involved.

Submissions of appellant and the Board

In his appeal, the Appellant said that the transcript had been requested during and since the oral hearing. In correspondence with him, the Board had said that, under section 145(5) of the Planning and Development Act, 2000, as amended, it would make available for inspection and purchase the documents relating to its decision, including a copy of the transcript, within 3 working days of that decision which was made on 28 November 2008. When my Office contacted the Board in August 2009, it stated that it did not have a stenographic transcript of the oral hearing. It said that it had supplied the appellant with the proceedings of the hearing on audio CD. However, in his appeal, the appellant pointed out that he had been unable to open and use the CD's provided even though he regularly uses a computer. He said that he was unable to search and find material from the audio CD. I have no indication that this difficulty in accessing the CD's provided was raised with the Board by the Appellant.

Ms Brenda Lynch, Investigator of my Office, wrote to the Appellant on 13 August 2009 expressing the view that if the Board did not hold the transcript sought, it would not be reasonable to require it to create the information in that format given that the information is available in another form or manner. She also responded to the appellant's query to the effect that my remit as Commissioner does not extend to the Public Participation Directive 2003/35 EC.

The Appellant's response was that my Office should apply its attention to the ''deception and conduct of An Bord Pleanála towards [his client's] Public Participation " including the Board's undertakings to provide the transcript and the failure to do so in time. He pointed out that all public authorities are bound by Directive 2003/35 EC. He said that the Board had failed to give a reason why it did not provide the transcript and argued that the format provided was unreasonable. He provided copies of the computer discs and said that there was no index and that the information should be decipherable and assessable to a wide public and not merely to computer experts and the ''technologically adept". The appellant also criticised the delay in my Office's dealing with the appeal.

My Office had the CD's examined and concluded that the Appellant was correct in relation to the difficulty in assessing the information without proper instructions or IT expertise. Apparently, the audio CD's are playable through a program known as "Simple Player". When the file is opened in that program, details such as the time, who is speaking and an outline of the discussion at the oral hearing are provided, the text can be searched and one can jump to different sections of the recording. My understanding is that the necessary program was included in the CD but could not be run properly due to an error in the file names which prevented its proper installation.

Following my Office's further contacts, the Board acknowledged that there were problems with the CD's and on 28 October 2009 it provided a second set of the CD's which worked properly on my Office's computers when tested. My Investigator asked the Board to provide the appellant with new copies to include the correct software and operating instructions.

On 25 November 2009, my Investigator wrote to the Appellant setting out the position and asking that he contact her by telephone when he received the fresh set of discs from the Board as arranged. She expressed the view that the Board had now complied with the provisions of the Regulations in that it did not hold the information in the form of a transcript and had provided it in another format. On 30 November 2009, the Board sent a new copy of both discs to the appellant stating that there was new software contained therein together with a set of instructions to play the discs. The Board's executive officer suggested that if any further problems arose, the appellant should contact him; he supplied contact details for this.

On 11 December 2009, the Appellant wrote to my Office again criticising the delay in reviewing his case and pointing out that his appeal had specified that he wished to have the information immediately and have all the points he made investigated. He disagreed with the Investigator's assessment of the time it had taken for the Board to deal with his request and was highly critical of the Board's handling of the matter. In a response of 21 January 2010, my Office asked the appellant to clarify whether he had been able to access the information on the discs sent to him by the Board on 30 November 2009. The Investigator stated that, for the purposes of the Regulations, the request of 11 February 2009 was the relevant one. Apparently, the appellant had sought the information under the Directive in 2008 ; however, the internal review decision of the Board which gave the appellant the right of appeal to my Office under Article 12 of the Regulations was dated 19 March 2009.

Since January 2010 there has been some further correspondence from the Appellant but he has not responded to the request that he state whether he is now able to access the CD's sent to him on 30 November 2009. My Office informed him that unless it heard to the contrary, it was proceeding on the basis that he had been able to access the information in the discs provided.

Analysis and Findings

Legal Provisions

I consider it useful to set out the provisions of the Regulations which are relevant to this appeal. Certain relevant terms are defined in Article 3 of the Regulations and at Article 3 of the Directive, 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;".

(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.

(2) Notwithstanding—

(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''.

''7(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) of the Regulations provides:

"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".

Jurisdiction of the Commissioner under the Regulations

I consider that while 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 Regulations. My role is confined in Article 12 of Regulations to reviewing decisions of public authorities made under Article 11 on foot of requests made and dealt with under Articles 6 and 7.

I take the view that, while my Office, as an emanation of the State, may be bound by certain provisions of the Public Participation Directive 2003/35 EC and may take account of the public participation objectives of the Directive where relevant (e.g. in relation to the public interest considerations) in its appeal decisions, this does not mean that I have any role in enforcing Directive 2003/35 EC's provisions or adjudicating on disputes on whether other public authorities complied with that Directive as opposed to Directive 2003/4/EC on public access to environmental information.

The Appellant's submissions insist that I make findings on all the points and criticisms that he has made. I will make findings and issue any directions within the jurisdiction conferred on me by the Regulations.

Format of information

I must consider whether the Regulations or the Directive allow me to direct the Board to make the proceedings available in the format required by the appellant i.e. to have a transcript of the hearing prepared if one is not already held. In this case, the information is held but not in transcript format since the Board evidently had the proceedings recorded and available in audio CD format but chose not to have a stenographic record made to provide a transcript which I take to be a written record. Article 7(3) of the Regulations requires a public authority to make available information in the manner requested unless (i) the information is already available to the public in another form or manner that is easily assessable, or (ii) access in another form would be reasonable. I will examine what happened in this case in the context of both of these exceptions.

The Board took its decision on case PL07 ER 2056 (the Galway City Outer By Pass) on 28 November 2008. Under section 146(3) of the Planning and Development Act 2000 as amended by section 29 of the Planning and Development (Strategic Infrastructure) Act 2006, all documents relating to the Board's decision are required to be made available for inspection and purchase by the public within 3 days of the decision. According to the appellant, this was not done in that the transcript he required was not available. Indeed, the appellant had been requesting the transcript from the time of the oral hearing and has submitted copies of his many communications to the Board on the matter. The Board's position is that no transcript existed. Yet, in January 2009, one of the Board's officers signed an undertaking for the appellant that the transcript would be available on 7 January 2009. The explanation for this appears to be that while the Board had in mind the audio recording on CD's as described above, the appellant at all times required that it produce a transcript.

Looking at the provisions of Articles 4(1) and 4(2) of the Regulations, it could be argued that the Regulations do not apply to information such as that at issue which is already, under planning legislation, required to be available for inspection. However, I will proceed on the basis that the information was not made available in the format sought by the appellant. I commented on the issue of the timing of release of information - also in the context of oral hearings conducted by the Board - in Case CEI 09/0007 available on www.ocei.ie.

I should say here that, in the interests of clarity and to allow the Appellant to pursue the matter, it would have been helpful and in compliance with the requirements of the Directive and the Regulations, had the Board informed the Appellant from the start that its references to making a transcript of the hearing available was intended as a reference to the audio format and that it did not have and did not intend to procure a written transcript of the proceedings. The Appellant has placed much emphasis in his submissions on the ''undertaking'' given by the Board to provide the transcript and on the fact that he required the information in the context of judicial review proceedings taken in the High Court against the Board's decision on the By Pass Road (judgment given October 2009) . However, I do not consider that the undertaking or the reason for the request are particularly relevant in themselves to the appellant's rights of access to environmental information under the Regulations and the Directive.

It is not in dispute that the audio CD's were provided albeit in circumstances where the Appellant had significant difficulty in accessing them. Given the difficulties encountered as described earlier in this decision, I consider that the information was not available in an easily accessible form when originally provided to the appellant and to the public under the provisions of the Planning and Development Act. In a later submission, the Appellant said that when he purchased copies of the Board's file under the planning legislation referred to above, the copy did not contain the disks that were sent to him in November 2009. Clearly, those versions were only prepared by the Board following the appellant's appeal and the intervention of this Office.

Conclusions

Having considered whether access in the audio CD form would be reasonable, I conclude that the access eventually provided with the proper instructions and software to enable the Appellant to access the information is reasonable in the circumstances. Clearly, the format provided originally was not reasonable. Effectively, my view is that there was an onus on the Board when relying on the provision in the Regulations (Article 7(3)) and in the Directive (Article 4(1)(b)(i) ) to provide information in a format other than that requested, to ensure that the format was accessible and reasonable. It failed to do so. It also failed to state its reasons for not making the information available in the form of a transcript which it is required to do under Article 7(3). While the Board's position was that it did not hold the transcript sought, it ought to have made it clear to the appellant that the same information was being provided or had been already provided in another format and ensured as far as possible that the alternative format was easily accessibel. My understanding is that the Board knew or ought to have known from the beginning of the hearing that the chosen recording format for the proceedings was an audio version. There is no evidence to show that it made this clear to the appellant when he first sought the transcript.

I consider that the Regulations and the Directive allow a public authority to provide information in a form other than that requested and that it was reasonable in principle for the Board to do this. It should, of course, have set out the reasons for its decision in relation to the information rather than simply state that it held no transcript. The Regulations and the Directive originated from 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] suggests that ''another form'' means that the information is the ''functional equivalent'' of the form requested, not a summary and that the information should be available in its entirety. I do not consider that what the appellant refers to as the 'bad faith'' of the Board in not ''honouring their undertaking'' is a relevant consideration in regard to the reasonableness or otherwise of the alternative format. Neither, having regard to the provision in the Directive that a person requesting information should have a right to access to information without having to state an interest, do I consider that the intended use of the information in court proceedings is of particular significance. However, I find it surprising that the Board's staff would give an undertaking in writing of the type given in this case without first checking and clarifying that a transcript was, in fact, held.

While the Appellant has given reasons as to why he wants to have a transcript, the information i.e. the proceedings of the oral hearing, have now been made available him on audio CD in their entirety. I do not consider that under the Regulations or the Directive it is reasonable that I should direct the Board to now have a transcript of the 21 day hearing prepared in circumstances where the hearing was held in public and the appellant has, albeit at a very late stage, been given an accessible audio CD version. I have taken account of the advice in the Aarhus Convention Implementation Guide publication which suggests that the benefits to allowing the applicant to choose the form of access include benefits for the public authority and the applicant such as faster provision of information, less costly provision of information, accommodation of special needs such as disabilities, different languages or lack of equipment and efficient use of complex information systems such as GIS. Given that a transcript other than an audio record had not been prepared by the Board at any time during or after the oral hearing, I am not satisfied that its provision would be faster or less costly; none of the other factors appear relevant in this case.

I note the Appellant's submission that there is no obligation arising from the Directive on the public to communicate informally with the public body. However, since the purpose of the process is to gain access to environmental information, one would expect generally that it would be in the interests of all concerned to resolve any misunderstandings or technical issues at an early stage. Given the responsibilities that the Directive and the Regulations place on public authorities, I believe that there is also an onus on Appellants to cooperate in the process. It is unfortunate that the Appellant did not contact the Board immediately when he discovered the difficulty the original CD's and that he declined to confirm to my Office as requested whether the fresh versions provided were accessible.

Decision

In accordance with article 12(5) of the Regulations, I have reviewed the decision of the Board in this case. I find that its decision to refuse the request was deficient in that it should have included reasons as to why the information was provided in a format other than that requested; it should have taken steps to ensure the easy accessibility of the information in the alternative format. I find that the Board was not required under the Regulations or the Directive in the circumstances of this case to provide the information in the form of a transcript which it did not hold . Given the furnishing to the appellant in November 2009 of accessible versions of the information in audio format, I do not propose to give any further directions to the Board.

Appeal to the High Court

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.

Emily O'Reilly
Commissioner for Environmental Information
30 March 2010