Case number: CEI/10/0018

Appeal to the Commissioner for Environmental Information

Case CEI/10/0018

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Mr. Cian Ginty (the appellant)

Public Authority: Irish Rail, Connolly Station, Dublin 1

Issue: Whether Irish Rail was justified in its refusal of access to environmental information sought by the appellant.

Summary of Commissioner's Decision:

In accordance with article 12(5) of the Regulations, the Commissioner reviewed the decision of Irish Rail and found that it was not justified in refusing the request. She found that the information sought is environmental information and, as none of the exceptions provided for in the Regulations apply, the information should be released. She annulled the decision and directed the release of the information.

Background

The applicant made a request under the Access to Information on the Environment Regulations, 2007 (S.I. No 133 of 2007) (the Regulations) to Irish Rail on 11 June 2010 seeking "a list of all current speed restrictions in the Irish Rail network, and any reports directly related to these speed restrictions." In its original decision of 23 June 2010, Irish Rail stated that the information requested was not "environmental information" and therefore not subject to the Regulations. The applicant sought an internal review of that decision on 13 July 2010. In its internal review decision of 2 September 2010, Irish Rail affirmed the original decision. The applicant then appealed to my Office on 2 September 2010. My investigator asked Irish Rail to identify the information relevant to the request. Four items were identified, as follows:

  1. Extracts from the Working Timetable.
  2. Weekly Circular
  3. Weekly TSR Report (Temporary Speed Restriction)
  4. TSR Database Master - relevant extract from excel spreadsheet.

Irish Rail and the appellant have made submissions to my Office and my Investigator sent her preliminary views to both parties.

Scope of Review

This review is concerned solely with whether Irish Rail's decision to refuse the request was justified under the Regulations. I am satisfied that the request relates to both the permanent speed limits on the railways and any temporary speed restrictions in place.

Analysis and Findings

Legal Provisions

I consider it useful to set out the provisions of the Regulations which are relevant to this appeal.

Article 3(1) of the Regulations defines "environmental information" as

"any information in written, visual, aural, electronic or any other material form on-

(a) the state of the elements of the environment... and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures)...designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost benefit and other economic analyses......referred to in paragraph (c), and

(f) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c);".

Art 10(1) provides as follows:

"(1) Notwithstanding articles 8 and 9 (1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment."

Art 11(2) and 11(3) provide as follows:

"(2) Following receipt of a request for a review under sub-article (1), the public authority concerned shall designate a person unconnected with the original decision whose rank is the same as, or higher than, that of the original decision-maker to review the decision and that person shall—

(a) affirm, vary or annul the decision, and

(b) where appropriate, require the public authority to make available environmental information to the applicant, in accordance with these Regulations.

(3) A decision under sub-article (2) shall be notified to the applicant within one month from receipt of the request for the internal review."

Handling of Internal Review request by Irish Rail

Article 11 of the Regulations sets out how an internal review request should be dealt with by a public authority. Article 11(3) provides that an internal review decision shall be notified to the applicant within one month of receipt of the request. Article 11(2) provides that the internal review shall be carried out by a person unconnected with the original decision whose rank is the same or higher than that of the original decision maker.

In this case, the internal review decision was not issued within the required time. Also, it was not clear from the documentation provided that the internal review decision was carried out by an appropriate person. This issue was raised with Irish Rail in the course of the appeal and I am now satisfied that the internal review decision was carried out by an appropriate person. Irish Rail has also advised that procedures are now in place to ensure the proper handling of requests.

Is the information sought "environmental information"?

The main issue which arises in this appeal is whether the information sought falls within the definition of "environmental information" in the Regulations.

Irish Rail's position in its original and internal review decisions was that the information is not environmental information. In its internal review decision, it described the information as being "purely of an operational nature, and by definition, are of a transient nature." My Investigator put it to Irish Rail that the speed of a train is a "factor" which affects or is likely to affect the "elements of the environment", as provided for in paragraph 3(1)(b) of the definition of environmental information. Factors governed by train speed include noise, emissions, discharges and other releases into the environment and these factors will have an impact on such elements of the environment as wildlife, the air and atmosphere, land, landscape and so on. It was also put to Irish Rail that the impact of environmental factors could require the imposition of temporary speed restrictions, though this would be unusual. In further submissions to my Office, Irish Rail stated that while "the view that all speed restrictions are an environmental matter is an extremely broad one, we do recognise the broader ethos behind the environmental regulations." Irish Rail also argued for a distinction to be made between permanent and temporary speed restrictions.

The appellant's position is that the information sought falls within the definition of environmental information and made submissions to my Office in support of his view. While he is of the view that the information sought could fall within multiple paragraphs of the definition of environmental information, I am of the view that paragraph 3(1)(b) is the most relevant.

I find that the information sought on "current speed restrictions on the Irish Rail network" is environmental information in accordance with the Regulations.

At no point did Irish Rail advance any other grounds under the Regulations as to why the information sought should be refused. It was also put to both Irish Rail and the appellant that information on train speeds can be said to relate to emissions into the environment and in accordance with Article 10(1), there did not appear to be any basis for withholding the information sought.

Decision

In accordance with article 12(5) of the Regulations, I have reviewed the decision of Irish Rail and I find, for the reasons set out above, that it was not justified in refusing access to the information sought. I find that the information sought is environmental information. I hereby annul the decision of Irish Rail and direct that the information be made available.

Appeal to the High Court

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.

Emily O'Reilly
Commissioner for Environmental Information
24 June 2011