Case number: CEI/10/0015
In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the City Council and found that it was justified in refusing the request for further documentation under Article 7(5) of the Regulations. She affirmed the decision of the City Council accordingly.
The appellant made a request to the City Council, dated 13 April 2010, seeking access under the AIE Regulations to all information, whether in hard or soft copy format, relating to the Greening of Waterford Study and Report, excepting copies of the final report and previous drafts already in her possession. She specified that it was her preference to access the requested information at the offices of the City Council and then to obtain photocopies of the items of interest to her. As no action on her request was taken by the City Council within the one-month deadline specified in Article 7 of the Regulations, the appellant applied for internal review of the deemed refusal in a letter dated 9 June 2010. In a decision dated 12 July 2010, the City Council purported to grant the appellant's request by making a compact disc or CD of data regarding the Greening of Waterford Study and Report available to the appellant. The matter was subsequently appealed to my Office on the basis that the CD did not comply with the appellant's request.
I have now completed my review of the City Council's decision in this case under Article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the City Council and the appellant, including the submission made by the appellant, dated 4 June 2012, in response to the preliminary view letter issued by Ms. Melanie Campbell, Investigator, on 28 May 2012, and also her further submission dated 9 July 2012 that was made directly to the City Council but copied to this Office. I consider it appropriate to bring this appeal to conclusion at this time by way of a formal, binding decision. While my decision does not comment or make findings on each and every query raised by the appellant in her submissions, all relevant points have been considered.
The City Council's position is that all relevant information that it holds is now available in hard or soft copy format at its offices. The City Council has acknowledged, however, that the software used for storing the soft copy records is "quite specialised" and thus difficult for an untrained person to avail of. I note that the difficulties have resulted in an understandable degree of frustration on the part of the appellant in her efforts to access the soft copy records regarding the Greening of Waterford Study and Report that have been granted to her.
The issue before me is whether the City Council was justified under Article 7(5) of the Regulations in refusing the appellant's request for access for further records relevant to her request dated 13 April 2010 on the basis that it does not hold the information requested. I will also address the issue of the form of access that has been granted to the appellant. However, although I have sympathy for the appellant in relation to the difficulties that she has encountered in her efforts to access the soft copy records that she seeks, I should also note for the sake of clarity it is not within my remit as Commissioner for Environmental Information to adjudicate on how public authorities carry out their functions generally, including with respect to their records management practices.
The parties are aware of my approach in dealing with cases where a public authority has effectively refused a request under Article 7(5). In essence, where a public authority effectively seeks to refuse a request for environmental information on the basis of Article 7(5), I must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the relevant circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply.
In her statement of appeal and a submission dated 14 April 2011, the appellant identified certain relevant information that she considered that the City Council should hold, including field notes associated with the study. Other information that she identified as missing included:
large-scale maps of "Locally Sensitive Sites"
maps of other locally significant habitats referenced in the Greening Report (e.g., Oakland's wood, Goff's wood, woodland on Little Island, etc (Rocklands wood excepted [but in her submission dated 4 June 2012, the appellant clarified that she did not intend to exclude any maps or documentation concerning Rocklands Wood from the scope of her request]))
a copy of the actual Heritage Council grant application.
After some initial confusion over ownership of the field notes referred to by the appellant, Ms. Honor Dunphy, Administrative Officer, made a submission dated 18 May 2012 in which she stated the following in pertinent part:
"(i) With regard to the field notes I am afraid that I have been unsuccessful in locating these. I have spoken to . . . the author of these notes, she handed the said notes over to Waterford City Council and did not retain a copy. The staff member that was dealing with the notes is no longer working for Waterford City Council. We have carried out a search of hard copy files in our offices and they cannot be located.
(ii) The information/maps etc relating to this project are on a programme called MapInfo which would have been on the original CD's sent to Ms. Canney. . . .
(iii) I can clarify that we do not have a copy of the actual Heritage Grant Application form. I have been in contact with the Heritage Council and they are currently sourcing this from their Archives, once received this will be available in our offices to view. I will confirm with you once this has been received."
Following the appellant's further submissions dated 4 June 2012 and 9 July 2012, respectively, Ms. Dunphy explained in a letter dated 17 August 2012 that all available information pertaining to the Greening of Waterford City project has been gathered and that all relevant hard and soft copy records have now been collated and are available for viewing. Ms. Dunphy specified that all staff still working in the City Council who worked on the project were contacted by phone or email in the course of the search for relevant information and that all soft and hard copy files, including those in the Archives section, were also searched. In a previous letter dated 14 June 2012, Ms. Dunphy specified that the search also included the planning office and also the architect's office. In the circumstances, I am satisfied that the City Council has now fulfilled its obligations under Article 7 of the AIE Regulations with respect to its searches for records relevant to the appellant's request dated 13 April 2010 and that Article 7(5) therefore applies.
Article 7(3)(a) of the Regulations provides:
"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."
In addition, Article 15 of the Regulations sets certain conditions for charging a fee for making environmental information available.
In this case, arrangements were made for the appellant to access the relevant soft copy files at the City Council's offices on 3 July 2012. The records that were supposed to be made thus available to the appellant included (1) the large-scale maps of "Locally Sensitive Sites" and (2) maps of other locally significant habitats referenced in the Greening Report. A member of staff was present during the appellant's visit to the offices in order to assist her with accessing the files. Evidently, however, despite the staff member's best efforts, the visit was not a success because of difficulties encountered in locating and assembling the information sought. It is not disputed that the difficulties were due to the specialised nature of the software needed to view the information concerned.
Thus, the appellant has been granted access to the soft copy records held by the City Council relating to the Greening of Waterford project, as she requested, but the form of access does not meet her expectations. Moreover, because of the difficulties encountered with the software, it remains unclear whether all of the maps that the appellant considers should exist are actually held by the Council or not. This situation has resulted in an understandable degree of frustration for the appellant. According to the appellant, the maps are very important for the conservation of Waterford City's wetlands, and she therefore considers it unacceptable that the maps are not readily accessible to the public and even to staff members of the City Council who are not specially trained to use the relevant software.
However, it is important to stress that there has been no refusal of the appellant's request by the City Council under Article 7(3) of the Regulations, as opposed to Article 7(5). The maps sought by the appellant simply are not held by the City Council in a readily accessible format, if indeed they are held at all. I note that the overall purpose of the AIE regime is to contribute to a better environment by increasing public access to environmental information and thereby achieve more effective public participation in environmental decision-making. The failure by a public authority to maintain environmental information in a manner that is readily reproducible and accessible by the public would obviously tend to undermine this purpose, which is why it is inconsistent with the requirements of Article 5 of the Regulations, as amended by the recent 2011 Amendment Regulations. However, as the appellant is aware, I have no enforcement powers in relation to Article 5 of the Regulations. Therefore, while the City Council's grant of access to the soft copy records it holds in this case may not be truly satisfactory from an environmental perspective, I simply am not in a position to require the City Council produce readily accessible maps where such maps are not already held by or on behalf of the City Council. This is an administrative matter that is outside of my remit as Commissioner for Environmental Information.
Nevertheless, I would expect the City Council to continue to make every reasonable effort to assist the appellant in accessing the maps that it does hold on any future scheduled visits to its offices. Moreover, I welcome the City Council's decision, as notified to this Office in a statement dated 28 August 2012, to waive its photocopying charges in this case in light of the circumstances and the delays encountered.
In accordance with Article 12(5) of the AIE Regulations, I have reviewed the decision of the City Council in this case. I find that the City Council's decision to refuse the appellant's request for access to further records relevant to her request dated 13 April 2010 was justified under Article 7(5) of the Regulations. I affirm the City Council's decision 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. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Commissioner for Environmental Information
23 October 2012