Case number: CEI/11/0009
The appellant made a request to the City Council, dated 9 February 2011, seeking access under the Access to Information on the Environment (AIE) Regulations to all documentation pertaining to Tree Protection Order (TPO) PD 271/76, which relates to trees on lands associated with the Glanbia premises, (Glenville), Maypark Lane, Waterford. As no written decision was made by the City Council within the one-month deadline specified in Article 7 of the Regulations, the appellant applied for internal review in a letter dated 28 March 2011 on the basis of the City Council's deemed refusal of her request. In her letter, the appellant emphasised that she had been informed by Waterford County Council (the County Council) that the file in question was transferred to the City Council following the boundary extension that took place in 1980. She also noted that the Waterford City Development Plan 2007-2013, like the Waterford City Development Plan 2002, made reference to "two extant TPOs in the City relating to trees in the grounds of the Glanbia plant at Maypark Lane and at Ballindud House". In her view, these references suggested that the Local Authority officials were familiar with the content of the TPO file concerned.
Again, no written decision was made by the City Council within the relevant time limit set out in the Regulations. Belatedly, however, on 16 May 2011, the City Council issued a statement explaining that some information relating to TPO PD 271/76 had been located and was available on file in the Environmental Services and Planning Office, but that the original documentation relating to the TPO could not be found. According to the City Council, "there is no record of this TPO in the files that were transferred from the County to the City in 1980". An appeal against the City Council's decision was received by my Office on 10 June 2011.
During the acceptance stage of the appeal, my Investigator, Ms. Melanie Campbell, noted that the subject matter overlapped in some degree with that of a previous appeal made by the same appellant, referenced CEI/10/0017. Indeed, a copy of the TPO for the Glenville site, apparently sourced from interested members of the Waterford City community, was included with a submission made by the appellant in the earlier case, as was a copy of a decision dated 21 April 2010 by the County Council relating to the TPO concerned. Therefore, Ms. Campbell decided to deal with the two related cases together. Following the receipt of a requested submission from the City Council dated 22 March 2012 in relation to its search for relevant records, Ms. Campbell wrote to the appellant explaining her preliminary view on the matters at issue. In her reply dated 11 May 2012, the appellant raised a further line of relevant enquiry in relation to Case CEI/10/0017; therefore, the earlier, related appeal remains pending. However, 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.
In December 2011, the Regulations were amended by the the European Communities (Access to Information on the Environment) (Amendment) Regulations 2011 (S.I. No. 662 of 2011). Under Article 12(6) of the Regulations, as amended, I may now waive all or part of the appeal fee where the original decision was untimely, i.e. where there was a deemed refusal of the original request.
The appellant has expressed dissatisfaction with the manner in which the City Council handled her request in this and other similar cases that are still pending before my Office. In a submission made in Case CEI/10/0017, the City Council suggested that the circumstances of moving the entire Planning Office and also difficulties with its Internet firewall may account for the communication problems experienced in connection with the appellant. In a submission made in this case, the City Council has also insisted that it is a "very open and transparent organisation" and it has assured this Office that "as an organisation we do not intentionally withhold records when they are sought". Like Ms. Campbell, I have no reason to doubt that the City Council has acted in good faith in this and other similar cases and in its dealings with this Office generally. I also recognise that, in the present economic environment, public bodies and authorities across the public sector are facing significant challenges in delivering a quality service with diminishing resources. Nevertheless, as there was no response to the appellant's original request in this case, and as the decision which ultimately issued following the appellant's internal review request was untimely, I agree with Ms. Campbell that a full refund of the appeal fee is warranted. The appellant's comments regarding the appropriate party to bear the cost of the refund have been noted.
My review in this case is concerned solely with the question of whether the City Council was justified in refusing the appellant's request for access for further documentation pertaining to TPO PD 271/76, in particular, the original TPO file. 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 appellant has also been informed that my Office has no enforcement powers in relation to Article 5 of the Regulations.
The City Council claims, in essence, that it does not hold any further relevant records, in particular, the original TPO file sought by the appellant. Article 7(5) of the AIE Regulations is the relevant provision that applies where the requested information is not held by or for the public authority concerned. A similar though not identical ground for refusal in relation to records ''not held'' is provided for under section 10(1)(a) of the Freedom of Information (FOI) Act. In previous decisions published on my website at www.ocei.gov.ie, I have explained that my approach in dealing with cases where a public authority has effectively refused a request under Article 7(5) is guided by the experience of the Office of the Information Commissioner in relation to section 10(1)(a) cases. For instance, in CEI/08/0012, Cllr Cullen and Department of Environment, Heritage and Local Government (27 Oct. 2009), I stated:
"In cases where the public authority claims not to hold the environmental information requested, I consider that my role is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public authority in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the information along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the information in question. On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the information is not held for or by the public authority. It is not normally the my function to search for records.
The Information Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In his decision, Mr. Justice Quirke stated: "I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision".
I consider that as Commissioner for Environmental Information, I am primarily concerned with ensuring public access to extant records in accordance with the provisions of the Regulations and the Directive. The Regulations do not provide for a right of access to records which ought to exist. Therefore, I do not have the authority to require a public authority to create records where such information records does not already exist or is not held by it.
In relation to the interpretation of Article 7(5) of the Regulations, I think that it is reasonable for me as Commissioner for Environmental Information to take a similar approach to that developed and approved by the High Court under FOI."
In short, 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.
Documentation pertaining to TPO PD 271/76
The City Council does not deny that the original TPO PD 271/76 file once existed and should have been transferred with the other 1976 files to its Records Centre from Waterford County Council following the Boundary Extension in 1980. However, in a City Council submission dated 22 December 2010 relating to Case CEI/10/0017, Ms. Honor Dunphy, Administrative Officer, Environmental Services and Planning, explained that she contacted the County Council and was informed that the file is marked as missing on their records system, Arclink, and was not included on the transfer sheet when the 1976 files were transferred to the City Council Records Centre. The case file includes a copy of an email of the same date from Ms. Joanne Rothwell, the County Council archivist in Dungarvan, which supports Ms. Dunphy's submission.
In response to this appeal, Ms. Colette Byrne, Director of Services, Environmental Services and Planning, provided a more detailed explanation, dated 8 July 2011, as follows:
"The file in question is one that would have originated in Waterford County Council and formed part of the files that should have [been] transferred to Waterford City Council following the Boundary Extension in 1980. You will appreciate that when a boundary extension happens all files relating to Local Authority activity should be transferred, ie housing, planning, water, drainage, grants, etc. Waterford City Council has no record of this file actually being received in the City. The City Archive service was set up in 1996 and I am satisfied that any records transferred to Archives since its establishment are well recorded and would be accessible and available. There is no record of this file ever having been deposited in Waterford City Archives. The City Archivist has worked with his counterpart in Waterford County Council and despite their efforts have not been able to locate the file or any records associated with it. Honor Dunphy the Administrative Officer in Planning has carried out exhaustive searches within the Planning Department and it was [as] a result of these searches that the report prepared in 1975 by An Foras Forbartha Teoranta, for Waterford County Council, was found. Ms Canney was immediately made aware of the existence of this document and I understand has viewed the report. The report is very detailed and [the] appendix attached to it is a copy of the TPO for Glenville, [and] whilst the document is not dated it is signed by the County Manager and an Elected Member in Waterford County Council. I suggest that while the TPO has not been made available to Ms Canney the copy attached to this report is almost certainly the TPO that was made at the time. . . . Whilst the file Ms Canney has sought has not been made available as Waterford City Council has no record of holding it and the report that has been made available, in my view, contains all of the information that the TPO file would contain, the only data missing is the actual date the TPO was made.
It is worth pointing out that the Planning Dept has moved twice in the last 5 years and all the files in the Planning Office would have been boxed and gone through for both moves; the actual TPO file was not found filed out of place during either of these moves.
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In relation to Ms Canneys reasons as to why she believes the City Council held the original file, I would comments as follows:
There is no question but that the file should have and was intended to be transferred to Waterford City Council by Waterford County Council, but there is no record to show it was actually transferred.
The reference made in the Development Plan would most certainly have been made without recourse to the actual file. Waterford City Council was aware that the TPO had been made, and the comment in the Development Plan, whilst mentioning the TPO in question, is of a general nature and relates to the protection afforded by TPOs in general."
The appellant has emphasised that she received a letter from the County Council, dated 20 January 2011, stating that "these files were transferred to Waterford City Council following boundary extension in 1980" [emphasis added]. As the heading of the letter makes specific reference to TPO PD 271/76 and the TPO at Ballindud House, the letter would appear to be misleading in the circumstances. However, it is apparent that the letter is a response to another AIE request made by the appellant to the County Council for access to the documentation associated with TPO PD 271/76 and the TPO at Ballindud House and that the heading simply restates the terms of her request. Moreover, as noted above, it undisputed that the files should have been transferred from the County Council to the City Council following the boundary extension in 1980. As noted by Ms. Campbell, the letter does not in fact contradict the claims made by Ms. Dunphy and Ms. Byrne in that it does not state that TPO PD 271/76 was in fact included on the transfer list. I further note that, in the previous, related decision by the County Council, dated 21 April 2010, it was stated that "there is no record available of the precise date of transfer to these files".
As Ms. Campbell also noted, the file in question dates from a period of over 30 years ago, as does the transfer of records following the boundary extension in 1980. In the experience of the Office of the Information Commissioner under FOI, it is not uncommon to find that records from this period, which preceded the enactment of the FOI Act, were not retained in any systematic way and are now missing. It is also relevant to highlight the fact that the City Archive was only set up in 1996, some 16 years after the transfer of records from the County Council to the City Council took place. Despite the previous existence of a Records Centre, it is reasonable to surmise that the establishment of the Archive introduced a more systematic method of storing relevant public records, but that the storage of records previously was less methodical. In a letter dated 26 January 2011, which was submitted with the appellant's appeal in this case, a City County official admits that "in the 1980s . . . the procedure for the recording of files to archives was not as structured as it is now".
Nevertheless, it seems that, as a result of Ms. Dunphy's searches, documentation relating to the TPO in question, including what probably is an actual copy of the information that would have been held in the missing file, has been located and made available to the appellant. The appellant has suggested that the City Council may have simply made the information available to her that she herself had given to the City Council in December 2010 after obtaining it from interested members of the Waterford City community. Moreover, in her recent submission dated 11 May 2012, the appellant poses a number of related questions that are of relevance to environmental services and planning, but which are not within my remit to address, as the appellant acknowledges to some degree. She seems to accept, however, that there is no reason to question the City Council's claim that it has made available all of the relevant documentation that it holds. In any event, having had regard to the relevant submissions, I am satisfied that the City Council has fulfilled its obligations under Article 7 of the AIE Regulations with respect to the appellant's request for documentation pertaining to TPO PD 271/76 and that Article 7(5) applies.
Comment Regarding Requirements of Article 5
In my Annual Report for 2011, recently published on 30 May 2012, I observed that the expectation in the scheme of the Regulations, and the EU Directive (2003/4/EC) upon which the Regulations are based, is that requests for environmental information will generally be granted. In order to facilitate access to environmental information, Article 5 of the Regulations requires public authorities to inform the public of their rights and to provide information and guidance on the exercise of those rights. Public authorities are also required to "make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means".
Additional requirements on public authorities have been introduced by the 2011 Amendment Regulations in order to comply with certain obligations under the Directive. Public authorities must now "ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable". Public authorities must also "maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found".
Although I have no enforcement powers in relation to Article 5 of the Regulations, it is undoubtedly the case, as the appellant has suggested, that compliance with its requirements would involve the implementation of organisational systems and efficiencies that ultimately would reduce the resources required of staff members such as Ms. Dunphy to search for and retrieve environmental information. Indeed, if the relevant environmental information were made available on the public authority's website, this could obviate the need for a formal access request in the first instance. The appellant has also suggested (following a suggestion that originated with a local Tree eNGO) that if TPOs were to be posted on the City Council's website in future, it could facilitate environmental services and planning and thus prevent the difficulties that evidently arose in the past in relation to the Glanbia site. Therefore, I consider it appropriate to urge public authorities, such as the City Council, to have due regard to the requirements of Article 5, as amended, not only to facilitate access to environmental information, but also to reduce the administrative burden that can otherwise ensue.
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 pertaining to TPO PD 271/76 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.