Case number: CEI/10/0008
The Commissioner found that UCD 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 UCD refuse a request on the basis that the information is not held by it
On 28 February 2010, the Applicant sent an email message to UCD referring to letters published in the Irish Times expressing views on the Corrib pipeline and on the impact of wind generation on electricity prices. He requested under the Regulations ''the full technical file developed by UCD which clearly outlines... " according to the relevant legislation and reports'', the reasons for UCD's stated positions on these issues.
On 22 March 2010, one of the UCD staff involved responded stating that the view of An Bord Pleanála on the pipeline was the basis for his use of the word ''dangerous'' in his correspondence. He said that he was a member of UCD staff but that his letter, whilst identifying his academic role, did not infer that he was speaking on behalf of UCD. The Applicant, on 22 March 2010, sought an internal review of that "decision". He also requested an internal review of the deemed refusal arising from the failure to reply to the second part of his request. On 7 May 2010, UCD issued separate internal review decisions refusing the requests on the basis that no records were held of the information sought and article 7(5) of the Regulations applied.
The Applicant, prior to the UCD internal review decisions, forwarded correspondence to my Office, paid the statutory appeal fee and made an appeal under Article 12 of the Regulations.
I have taken account of the submissions of the Applicant and UCD, the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive).
Elizabeth Dolan of my Office, sent to the Applicant on 3 June 2010, a summary of UCD's position in this case. The Applicant responded on the same day 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 UCD 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.
The Applicant has stressed his disagreement with certain actions and policies of UCD and other public bodies. The Applicant's position is that senior officials in UCD were aware of the letters and should publish in the Irish Times a clarification if it is their case that letters published in UCD's name ''are not belonging to the college''.
UCD accepts that no decision was made on the second part of the request and that the internal review decisions issued outside of the statutory period. Its position is that the letters were written by staff members but that it holds no information or technical files such as those requested.
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 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 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 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 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 in relation to section 10(1)(a) of the FOI Acts. I have made my position clear and explained my approach in a number of recent decisions arising from appeals by the same Applicant. I do not intend to repeat the detailed background here.
I do not consider that my Office has jurisdiction (nor would it be appropriate for it to use its resources) to pursue the question of whether UCD should seek to publish clarification of the matter. On the face of it, the two staff involved used their UCD addresses in their letters to the newspaper. Whether they should have done this or whether their views are correct are not matters with which I am concerned. The fact that the letters came from a UCD address does not mean that their employer holds technical information to support the letter writers' views. I have no reason to doubt UCD's position that it, as a public authority, holds no ''technical file'' information of the kind sought and that such information was neither produced or received by it. I consider, therefore, that UCD is justified in refusing the request on the basis that article 7(5) of the Regulations applies.
I find that UCD was justified in its decision to refuse the request 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 July 2010