Case number: CEI/09/0007
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 5 March 2009, asking the Board to "broadcast the Oral Hearing into Metro North on the web, and to make the transcripts of the hearing available on-line at the end of each day". In its decision of 27 March 2009, the Board refused access on the basis of Article 9(2)(a) and (c) of the Regulations. The Appellant then sought an internal review of the decision on 30 March 2009 and the Board issued its internal review decision on 3 April 2009, affirming its original decision to refuse access on the basis of Article 9(2)(c) and stating that the Board was satisfied that the Regulations did not apply to the Appellant's request for webcasting. The Appellant submitted an appeal to this Office on 14 April 2009, which was accepted on 30 April 2009 following receipt of the appropriate fee and confirmation that the appeal was valid.
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 23 December 2009. Responses were received from the Appellant and the Board. 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/09/0005 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 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.
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 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) andany 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) provides as follows:
"A public authority may refuse to make environmental information available where the request -
(a) is manifestly unreasonable having regard to the volume or range of information sought...
(c) concerns material in the course of completion, or unfinished documents or data"
In its original refusal the Board said that the request was manifestly unreasonable under Article (2)(a) of the Regulations and that the information was in the course of completion (Article 9(2)(c)). In its internal review decision, the Board stated that the person conducting the oral hearing is obliged to do so "without undue formality" and that persons making submissions must not be put under any undue pressure such as might arise in t he event of proceedings being streamed on the internet. It said that for "legal, logistical, financial, procedural and efficiency reasons" it would not be reasonable or practical to stream the proceedings live on the internet. Further , it considered that the part of the request relating to the web broadcast was not a request for environmental information as defined but a request as to the conduct of the oral hearing.
The Appellant said in her request that her organisation is a voluntary one with the aim of informing the local community of issues arising from the construction and operation of the proposed metro. She contends that the Directive and the Regulations oblige the Board to allow the local community to fully participate in this important process and that failure by the Board to comply with the Directive may mean that the oral hearing process and any decisions from it will be judicially reviewed. She argues that complying with the request would require very little expense in the context of the process as a whole and that the Directive places an obligation on the public authority to be pro-active in releasing the information. She says that, by definition, transcripts are complete and will not be changed. According to the Appellant, an oral hearing is not an informal affair but has specific rules and procedures and its attend by junior and senior counsel. She contends that release of the transcripts would enable the public to follow the hearing without having to take time of work and other commitments. As regards the webcasting, she points out that current procedures for oral hearings were brought in before the coming into effect of the Directive and the Regulations and that public authorities must have procedures to reflect that change in relation to the dissemination of environmental information through technology in accordance with Article 1(b) in the objectives of the Directive.
There are two elements to this request. The Appellant seeks (1) a direction from me that the Board must broadcast the proceedings of the oral hearing on the worldwide web and (2) a direction from me that the Board make transcripts of the hearing available on line at the end of each day's proceedings.
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 to make the proceedings available in the form of a "webcast" and/or to release the transcripts which were, at the time of the request, "future'' records not yet in the possession of the Board. I realise that if I find that the Appellant is entitled to the directions sought, 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 note that, should it wish to do so and subject to consideration any technical, operational or resources issues, there is nothing in the Directive or the Regulations or indeed in the planning legislation, to prevent the Board from changing its procedures and publishing or broadcasting 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 producing information in a format and at a time specified by the Appellant in circumstances where that information 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 her 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 in the manner sought.
My finding is that nothing in the Directive or in the Regulations requires the Board to give out the information 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. Similarly, I agree with the Board's position that the request for the information to be broadcast is not a request for access to information within the definition of "environmental information held" but relates primarily to how the Board conducts its oral hearings. 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 respect 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. The Appellant may have entitlements under Article 7 of the Directive in relation to the duty on Member Staters to ensure that necessary measures are taken to actively and systematically disseminate environmental information to the public, in particular by means of technology , where available. However, that is not a matter which I have the power to rule upon since my Office as set up under the Regulations is restricted to dealing with appeals arising from requests under Article 3 of the Directive for environmental information in the possession of the Board which has been produced or received by it.
Having considered the matter, I satisfied that it is not within my remit as Commissioner as set out under the Regulations and the Directive to direct the Board to arrange the webcasting of the proceedings of the oral hearing. Neither can I direct it to release transcripts containing information not in its possession when the Appellant made the request.
As I have found that I cannot direct the release of the information as sought by the Appellant 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 this case 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 proceedings and 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. 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. While Article 12(5) allows me, where appropriate, to require a public authority to make environmental information available to an applicant, it specifies that this can be done only ''in accordance with the Regulations".
It is argued by the Appellant that Article 4(1) may be in conflict with the Directive and that the Directive's provisions are supreme. It does not appear to be in dispute that, in certain circumstances, a Directive or parts thereof can have direct effect in Member States. As I understand it, the requirements for direct effect are that the period for transposing the Directive must have expired, it must not have been transposed or must have been incorrectly transposed, its provisions must be unconditional, sufficiently precise and not subject to the taking of any further measures; it must confer a right on an individual as against a Member State (See Case 236/92 Comitato di Coordinamento per la Difesa della Cava and others v. Regione Lombardia and others  ECR I-00483.). I am not satisfied in the circumstances of this case that, even if it could be established that a part of the Directive had been incorrectly transposed, the relevant provisions are sufficiently unconditional and precise in relation to the timing of release of this type of information emanating from a public hearing which had not commenced at the time of the request to require me to consider directing the release of the transcripts in the manner sought.
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.
Commissioner for Environmental Information
24 February 2010