Case number: CEI/10/0003
The Commissioner found that IDA was justified in its decision to refuse the request on the basis that it did not hold environmental information within the scope of the request. She found that section 7(5) of the Regulations allows IDA to refuse a request on the basis that the information is not held by it.
On 13 December 2009, the Applicant sent an email message to IDA querying the basis for reported comments by the Chief Executive and asking about:
IDA made a decision on 12 January 2010 giving background information as regards its role. It said that it could not locate the information requested. It said that, as far as the decision maker could determine, the information did not exist. It detailed the searches undertaken and refused the request under Article 7(5) of the Regulations. The Applicant made an internal review application to IDA. He argued that IDA should have relevant facts and figures. The internal review decision of 1 February 2010 upheld the original decision.
The Applicant's appeal under the Regulations was submitted on 1 February 2010 and was accepted on payment of the statutory fee.
I have taken account of the submissions of the Applicant and IDA, the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive). What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Elizabeth Dolan, Senior Investigator in my Office, sent her preliminary views to the Applicant on 17 May 2010. The Applicant responded and requested that I bring this appeal to a conclusion by way of a formal, binding decision.
Under Article 12 of the Regulations, I must review the decision of IDA and affirm, vary or annul it. I emphasise, as I have had to do in other cases, that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally. My Office does not have the authority to investigate complaints against public authorities or to provide an alternative dispute mechanism with respect to actions taken or not taken by public authorities; my role is confined to that prescribed in relation to appeals against decisions on requests for access to environmental information.
The Applicant's submission includes much criticism of ''the programme proposed by the Chief Executive of the IDA''. He considers that the IDA is making public statements promoting wind power while failing to correctly report published data on the capacity factor. He says that he cannot understand why the information he requests cannot 'be answered within the available information that the IDA has''.
My Office asked the applicant to indicate what information he considered was held. He responded with his views on the role of wind energy and electricity prices. He argued that IDA should answer the questions posed as to what is the technical basis for the information in its press releases. He queried statistics used in statements to the media.
IDA's position is that it does not hold environmental information within the scope of the request. It confirmed, in response to queries from my Office that it had not undertaken any analysis of wind energy generation programmes and that some of the information used in the publication was sourced from Sustainable Energy Ireland. It said also that as IDA did not have responsibility for electricity generation policy or pricing, these matters should be addressed by the Department of Energy, ESB/Eirgrid and CER.
IDA provided details of the searches undertaken for the information at issue.
The Directive and Regulations set out the following definition in relation to what may be requested:
"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;
Article 3(1) of the Regulations defines "environmental information" as
"any information in written, visual, aural, electronic or any other material form on.... [elements, measures, reports etc. affecting or relating to the environment and factors affecting it detailed at (a) - (f)]''
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 information applicant as soon as possible that the information is not held by or for it."
In this case, it is not in dispute that if the information, if held, would come within the definition of environmental information in the Regulations and the Directive.
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 or control 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.
In his response to the Senior Investigator's preliminary views letter, the Applicant appears to accept that I have no jurisdiction under the Regulations in relation to how the IDA disseminates environmental information.
Whilst he is of the view that further information should exist, this does not necessarily mean that such information is held. I do not consider it within my jurisdiction to pursue the question of whether IDA should state where it obtained the 35% figure (mentioned in reports of what the Chief Executive said) which the Applicant considers to be inaccurate. Apart from extending the requirements of the Regulations to cover an explanation or source for the use of a particular piece of information, it is clear that such information on the 35% capacity factor was not requested in the request under appeal.
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. 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 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. I have no reason to doubt IDA's assertion that the specific information sought was neither produced nor received by it and is, therefore, not held by it at this time. I consider, therefore, that IDA is justified in refusing the request on the basis that it does not hold environmental information on wind energy generation as specified by the applicant.
I find that IDA was justified in its decision to refuse the request under Article 7(5) of the Regulations and I affirm its decision.
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
2 June 2010