Case number: CEI/09/0012
The applicant made a request to South Dublin County Council (the Council) for access to information on "all dumping on lands owned by [C and D J of Co. Dublin".]
As no decision was issued by the Council in the required timeframe, the applicant sought an internal review by the Council. In its internal review decision, the Council refused access to the information sought on the basis of Article 9(1)(b) of the Regulations. The decision was then appealed to my Office.
In view of the passage of time since the original request was made and the internal review decision given, my Office asked the Council to consider whether the situation had changed and if the position of the Council remained the same. In response, the Council advised that the relevant file had been closed and it was prepared to release the information to the applicant, subject to the redaction of a limited amount of personal information in some of the records such as personal contact information. The information was released and it was made clear to the applicant that there was no further issue to be determined by my Office. In the absence of confirmation from the applicant the he accepts this to be the position, I have decided to bring this appeal to a conclusion by way of a formal, binding decision. I have taken account of the submissions of the applicant and the Council, the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive).
Under Article 12 of the Regulations, I must review the decision of the Council and affirm, vary or annul it. I emphasise, as I have had to do in other cases, that it is outside of my remit as Commissioner to adjudicate on how public authorities carry out their functions generally. My Office does not have the authority to investigate or to comment upon the applicant's views or the Council's actions in relation to the matters the subject of the original request.
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."
The Regulations and Directive refer to information in the possession of a public authority and produced or received by it. Article 7(5) of the Regulations allows a public authority to effectively refuse a request by notifying the requester that it does not hold the material sought. There is also provision whereby a public authority that is aware that the information is held by or for another public authority, shall transfer the request. This indicates that the Regulations and Directive envisage situations in which it is legitimate for a public authority to refuse access simply because it does not hold the information sought. "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 provision in relation to records ''not held'' exists in Section 10(1)(a) of the FOI Acts. 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, my role is to decide whether the decision maker has had regard to all the relevant evidence and where relevant to assess the adequacy of the searches conducted by the public authority in looking for relevant records. My Office's approach in search cases was upheld in a decision of the High Court in the case of Ryan v the Information Commissioner Unreported May 20 2003.
In relation to the interpretation of Article 7(5) of the Regulations, I have taken a similar approach to that developed and approved by the High Court under FOI.
In this case, the Council released the information it had identified as relevant to the request. The applicant contends that there should be more information but has not provided any evidence to support this contention. Having pursued the matter with the Council and received written responses regarding the searches undertaken for information relevant to the request, I am satisfied that all relevant material has been identified and released to the applicant.
Apart from the information released to the applicant during the course of this review, I find that Article 7(5) of the Regulations applies to any further information relevant to the request in that the information sought is not held at this time.
In accordance with article 12(5) of the Regulations, I have reviewed the decision of the Council in this case and I find, for the reasons detailed above, that it was not justified in its original decision but that Article 7(5) of the Regulations applies to any further information, apart from that released during the course of the review. I vary the decision of the Council accordingly.
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 was given to the person bringing the appeal.