Case number: CEI/10/0017
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.
This appeal relates to a request made to the City Council, dated 7 April 2010, for access under the AIE Regulations to "all Unauthorised Development files which have been opened to date in respect of the lands outlined on the attached drawing and to any other documentation (including e-mails) not contained on an official UD file but which relate to concerns or comment in respect of clearance works/perceived clearance works on the subject site - and - to all pre-planning minutes/documentation concerning planning application 10/35, which pertains to the subject site." The matter was appealed to my Office on the basis of the City Council's deemed refusal of the request at the original and internal review decision-making stages.
On 16 November 2010, the City Council issued a statement claiming that no Unauthorised Development files had been opened in respect of the clearance works on the site concerned, which has usually been referred to throughout these proceedings as the Glanbia site. The Council also claimed that no records existed in relation to the request for pre-planning minutes/documentation concerning planning application 10/35.
The appellant challenged the City Council's response in a submission to this Office dated 1 December 2010. In relation to the Council's claim that no Unauthorised Development files were opened in respect of the Glanbia site, the appellant referred to file UD 108-04. She stated that, as the City Council had not made reference to this file, she questioned whether the City Council had properly addressed her request. In relation to her request for "other documentation . . . in respect of clearance works", the appellant referred in particular to the absence of any mention of a "weeping ash tree" that had been the subject of a Tree Protection Order (TPO PD 271/76) for the Glanbia (Glenville) site. Lastly, she disputed the City Council's claim that it does not hold any minutes of pre-planning meetings pertaining to the site, and she provided further submissions in support of her position on 7 December 2011 and 7 January 2011, respectively.
Subsequently, on 9 January 2011, the appellant made a new request for access to all documentation pertaining to TPO PD 271/76. This request ultimately gave rise to Case CEI/11/0009, which concluded by way of a decision by me on 7 June 2012.
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 11 May 2012, in response to the preliminary view letter issued by Ms. Melanie Campbell, Investigator, on 19 April 2012. As with Case CEI/11/0009, I consider it appropriate to conclude the matter the matter 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.
I note that it is the City Council's position that all relevant records that it holds are now on file and available for viewing by the appellant. 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 to further records relevant to her request dated 7 April 2010 on the basis that it does not hold the information requested. For the sake of completeness, I will also comment briefly on the issue of the form of access that has been granted to the appellant. However, as the appellant is aware, 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.
During the course of the review in this case, Ms. Honor Dunphy, Administrative Officer, explained the City Council's reasons for not previously making mention of UD 108-04. She also explained the steps taken to search for any additional unauthorised development files relating to the Glanbia site and also certain clearance works carried out on the site involving invasive species.
In her submission dated 15 May 2012, the appellant accepted that the City Council has now carried out an adequate search for any further unauthorised development files. It seems therefore that there is no dispute that the City Council does not hold any other unauthorised development files relating to the Glanbia site. The appellant wishes me to comment on the fact that the City Council initially limited its search to a five-year timeframe despite the fact that her request included no such time limitation. However, I note that, following her appeal, the City Council extended its search of its own accord, thus evidently recognising that its search had initially not been adequate. In any event, in light of Ms. Dunphy's explanations, I am satisfied that Article 7(5) of the Regulations applies and that there is no further issue for me to determine in relation to the appellant's request for unauthorised development files.
It is also undisputed that a series of pre-planning meetings took place relating to the Glanbia site; while the meetings should have been recorded in accordance with section 247 of the Planning and Development Act 2000, regrettably they were not. In a submission dated 26 March 2012, the City Council stated unequivocally that there are no minutes of any of the meetings on the file. The City Council further stated: "We do now however have a policy in place that is in line with the requirements of section 247 of the Planning and Development Act 2000 to minute all pre-planning minutes." As Ms. Campbell noted in her preliminary view letter to the appellant, the City Council's statement can be read as an implicit admission that such a policy was not previously followed in relation to the site. Again, I am satisfied that Article 7(5) applies.
In its statement dated 16 November 2010, the City Council reported that any correspondence regarding the trees on the Glanbia site pertaining to planning application 10/35 had been placed on file reference P132-5, a copy of which was made available to the appellant. Nevertheless, in a letter to the City Council dated 8 March 2012, which also related to the categories of records referred to above, Ms. Campbell asked the City Council to explain the steps taken to search for documentation, other than unauthorised development files, concerning clearance works relating to the Glanbia site. Ms. Dunphy's letter in reply, dated 26 March 2012, included the following information:
"(iii) The senior planner who oversaw this file has since retired. I have spoke to our Horticulturist who has confirmed that the clearance works that were undertaken on the Glanbia site were carried out in order to enable an assessment of the trees to be undertaken [and that] the only plants/trees to be removed were Bamboo and Laurel, both [of] which are invasive species. The horticulturist has also checked his own files and there is nothing pertaining to the clearance works on it as the instruction was given verbally."
In her reply to Ms. Campbell's preliminary view letter, the appellant stated that she did not consider that City Council had carried out an adequate search for any other documentation relating to clearance works/perceived clearance works. She noted that the City Council's letter referred to clearance works which occurred in advance of planning application 10/35, whereas her request relates to "all clearance works on the site - not just the most recent works". She also referred to specific items of correspondence that she had reason to believe should be held by the City Council. In addition, she queried the absence of any notes or forms detailing Cllr Jack Walsh's intervention with officials on behalf of local residents in respect of clearance works in 2009.
Ms. Campbell brought the appellant's concerns to the City Council's attention and requested further search details in relation to any other documentation relating to clearance work/perceived clearance works that it may hold. Ms. Campbell also brought it to the City Council's attention that any clearance works associated with the Main Drainage Scheme, as referenced in a submission by the appellant dated 7 December 2010, would also be relevant to her request.
In a submission dated 15 June 2012, Ms. Dunphy explained that, in addition to the previous searches carried out, she emailed all staff involved in the matter to determine whether they had any additional emails or other records relevant to the site. Ms. Dunphy reported that she succeeded in gathering additional information which has now been filed on administration file (ref PLAN/T.8 - previously referenced P132-5). She further stated:
The searches that have been carried out to date have included any works carried out on the Glanbia site and no timeframe has applied.
An AIE officer in the City Council has now been appointed.
There were no records of the intervention by Cllr Jack Walsh in 2009 regarding the clearance works. However, this issue has been raised with staff and the importance of recording events such as this has been highlighted. The issue will also be reiterated in the planned training and review of the City Council's records management systems as outlined below.
In addition to confirming the City Council's commitment to meeting its obligations under the AIE Regulations, Ms. Dunphy added in her submission:
"We will undertake a review of all our record management systems, [but] this may take a number of months to take effect. We will look at developing a policy in line with relevant legislation to ensure that information is provided and presented in an accessible manner. As part of this review we will look at the various systems that can be used to record information, [but] the suggestion of recording files under landholding records is a large undertaking and not one that we currently have the resources for.
All our planners have been informed of the importance of taking pre-planning notes and ensuring that they are placed on the relevant file.
We will ensure that future requests are not limited to a five year timeframe and if there is to be a timeframe put on it the person requesting the information will be informed."
In light of Ms. Dunphy's recent submission, 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 7 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.
I note that, in her original request, the appellant indicated that she would be satisfied with access to the relevant files once the file reference numbers have been forwarded to her, but she also stated that she would require copies of any "miscellaneous documentation". As the additional information located as a result of Ms. Dunphy's searches is now available on file (ref. PLANT/T.8 - previously referenced P132-5), it is not clear whether the appellant will seek access to any copies. Nevertheless, in order to avoid any confusion over the matter, Ms. Campbell sought to determine whether the City Council's proposed fee schedule for photocopying complies with the requirements of Article 15 of the Regulations. In a response dated 28 August 2012, however, the City Council stated that it would waive its photocopying charges in this case in light of the circumstances and the delays encountered. Therefore, I am satisfied that access to the additional information found will be made available to the appellant in the form or manner that she seeks without any issue over fees arising.
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 documentation relevant to her request dated 7 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
16 October 2012