Case number: CEI/11/0003
In accordance with article 12(5) of the Regulations, the Commissioner has reviewed the decision of the Department and finds that the information sought, apart from that provided by the Department in response to the original request, is not held at this time and Article 7(5) of the Regulations applies. She affirms the decision of the Department accordingly.
In his original request of 23 December 2010, the appellant referred to the then Minister Ryan's appearance on RTE's Primetime programme on 14 December 2010, and his remarks on wind energy. The appellant sought a full list of documentation referred to by Minister Ryan and asked that the relevant content which supported his comments be identified. In its decision of 21 January 2011, the Department identified four reports and provided copies of these to the appellant. The Department also identified reports, being prepared by other organisations, it was aware of which were due to be published shortly and provided some additional information. The appellant sought an internal review of the Department's decision as he was not satisfied that the information provided supported the remarks made by the Minister with regard to the price of electricity for consumers. In its internal review decision, the Department affirmed its original decision and said that it had provided the appellant with the relevant material and had no further relevant information available.
The Department's decision was appealed to this Office on 30 January 2011.
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 appellant 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. Please note that I have not seen the programme the subject of the request nor have I had the opportunity to examine any transcript of the remarks made.
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.
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."
Article 7(9) of the Regulations provides:
"Where, in a request for information on factors affecting or likely to affect the environment, the applicant specifies that he or she requires information on the measurement procedures, including methods of analysis, sampling and pretreatment of samples, used in compiling that information, the public authority shall, as Article 8(2) of the Directive requires, either make the information available to the applicant or refer the applicant to the standardised procedures."
The appellant does not agree with the remarks made by the Minister nor does he accept that the remarks are justified by the reports and other information made available to him by the Department. In his submission, he has set out in considerable detail why, in his opinion, the remarks made were not justified. He is of the view that the Department should have had regard to the provisions of Article 7(9) of the Regulations in responding to his request. He has also raised issues regarding the implementation of the Aarhus Convention and Directive 2003/4/EC. As pointed out above, the remit of the Commissioner is limited to whether the Department was justified in its decision in relation to his request for access to information.
In its decisions and submission to this Office, the Department clearly states that it has provided the appellant with all the relevant information available to it which informed the remarks of Minister Ryan on the Primetime programme, and that it has no further information to add. It has also pointed out that it has provided the appellant with the basis of the Minister's assertion and that it is the Minister's prerogative to draw the conclusions he deemed appropriate from the reports and other information available to him. In relation to the provisions of Article 7(9) of the Regulations, the Department advised my office that the reports identified as relevant to the request and provided to the appellant were not compiled on behalf of the Department but were the independent work of the authors, and so detailed information of the type referred to in Article 7(9) is not available to the Department.
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.
It seems to me that there is no reason to doubt the Department's assertions that it has identified all information held by it relevant to the request and has made that information available to the appellant. While it may not meet with the requirements of the appellant, the Department cannot be expected to create information for this purpose under the Regulations.
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 appellant. I do not intend to repeat the detailed background here.
In any event, I find that the information sought, apart from that provided by the Department in response to the original request, 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