Case number: CEI/10/0016
The Commissioner found that the Department 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 Article 7(5) of the Regulations allows a public authority to refuse a request on the basis that the information requested is not held by it. She affirmed the Department's decision.
On 27 June 2010, by email, the applicant sought two items of information relating to a foreshore licence for the Dublin City Waste to Energy Project:
The Department issued a decision on 28 July 2010 refusing access to the information sought. The applicant made an internal review request in relation to the second part of his original request on 29 July 2010 and on 28 August 2010 wrote to the Department and provided clarification as follows: "I made it clear that I was requesting an internal review on the second question related to the timeframe for processing a foreshore licence."
On 30 August 2010, the applicant appealed to my Office the Department's failure to reply to his internal review request. At the request of this Office, the Department subsequently issued an "effective decision" on 3 December, 2010 which affirmed its initial decision on the request. It did, however, go on to state, in relation to the time limits for processing an application for a foreshore licence, that " the Foreshore Act 1933 does not specify time limits within which licence applications must be processed and accordingly there are no records available which address this issue".
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 Department, 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.
Under Article 12 of the Regulations, I must review the decision of the Department 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 Department's actions in relation to the policies involved.
As the applicant's internal review request related only to the second part of his original request, the scope of this appeal is therefore also limited to the second part of the request.
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 inform the 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 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.
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 this Office has jurisdiction to pursue the Department/Minister in relation to how it/he fulfils its statutory role in the processing of applications for foreshore licences. The Department has stated in writing that it does not hold any record which contains the information sought by the applicant in relation to the timeframe for processing licences. There appears to be no reason to doubt the Department's assurances that it did not create or receive the information sought. In any event, I find that the information sought is not held at this time and Article 7(5) of the Regulations applies.
In accordance with article 12(5) of the Regulations, I have reviewed the decision of the Department in this case and I find, for the reasons detailed above that it was justified in its decision to refuse the request. I affirm the decision of the Department 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.
Commissioner for Environmental Information
29 July 2011