Case number: cei/14/0001
Whether the Board was justified in refusing to provide access to environmental information relating to planning appeals involving seven infrastructural developments in the Rye Water River catchment
The Commissioner found that the Board was justified in refusing the appellant's request under Article 7(5) of the Regulations, on the basis that the Board did not hold the information requested. Accordingly, the Commissioner affirmed the Board's decision.
On 29 October 2013, the appellant wrote to the Board citing the Access to Information on the Environment Regulations 2007 to 2011(the Regulations) and requesting information which would clarify how the Board considered and ruled on environmental issues which arose in seven planning appeal cases involving lands located in the Rye Water River catchment in counties Meath and Kildare.
The Board's case reference numbers were: PL 17.240405, PL 17.239772, PL 17.239523, PL 17.239375, PL 17.239211, PL 09.238818 and PL 17. 238370.
On 28 November 2013 the Board issued its decision: After carrying out a search of records held by or for it, the Board provided access to copies of a planning inspector's notes and informed the appellant that all other relevant records in its possession were available in the Board's files for inspection and purchase. Essentially, the Board's decision was to provide access to all of the information it held.
The appellant wrote to the Board on 13 December 2013 and expressed dissatisfaction with the information provided. He maintained that the information which he sought was not in the Board's files and had not been made available as requested. He asked for an explanation as to "why a tangible Environmental Impact Assessment (EIA) was not completed for the files". The Board took this letter to be a request for internal review of its original decision, and regarded the reference to EIA as the raising of a new issue.
The Board issued its internal review decision by letter on 9 January 2014. Although the letter stated that the decision-maker had varied the original decision, it remained the Board's position that all relevant information held by it had been made available to the appellant or was available for viewing in its files. The letter contained an explanation of the EIA process, and purported to justify the absence of records of the type sought by the appellant from the Board's files.
Still dissatisfied, the appellant wrote to my Office on 5 February 2014. He paid the required fee and his submission was accepted as constituting an appeal for the purposes of Article 12 of the Regulations.
Under Article 12 of the Regulations, my role is to review the decision of the Board and to affirm, vary or annul it. It is beyond my remit as Commissioner to comment or adjudicate on how public authorities carry out their functions either generally or with regard to their obligations under Regulation 5. This Office does not have authority to investigate complaints made against public authorities or to provide an alternative dispute mechanism with respect to actions taken or not taken by such authorities; my role is confined to that prescribed in relation to appeals against decisions taken following requests for access to environmental information.
I have taken account of the submissions of the appellant and of An Bord Pleanála. I have also had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the Regulations; Directive 2003/4/EC, upon which the Regulations are based; and The Aarhus Convention: An Implementation Guide (second edition, June 2014) (the Aarhus Guide) relating to the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention).
The appellant's argument is that, in carrying out an EIA, the Board must have considered the various conflicting technical issues put before it and ought to have recorded each decision made during that process, along with the associated reasoning. He points out that the flood risk guidelines issued by the Department of the Environment, Heritage and Local Government and the Office of Public Works require "transparent consideration of flood risk at all levels of the planning process". He argues that such transparency does not exist in this instance. He argues that it would not have been sufficient for the Board to have carried out EIA as if the EIA process could be equated to the process of determining appeals.
An Bord Pleanála's position
The Board's position is that access to all of the information held by the Board in relation to the request has been provided to the appellant, either by direct provision or by invitation to inspect and take copies of records held in the Board's files. In its submission the Board states that when it was notified of the appeal to this Office it undertook further searches to identify any additional documents but none were found. It maintains that information which could satisfy the request, if it had been received or produced by the Board, would be contained in the Board's planning appeal files. The Board, in its submission to this Office, stated that it had notified the appellant that:
"by reference to the Board's Direction of 4 January 2013, the Board completed an environmental impact assessment of the proposed scheme, which considered inter alia the over-arching environmental impact statement .... The Board considered that the environmental impacts of the proposed developments are acceptable and, subject to compliance with the mitigating measures set out in the EIS, and further conditions included by the Board in this Order, the proposed development would not have unacceptable adverse effects on the environment."
It is clear from the Board's submission and from the explanation of the EIA process which the Board provided to the appellant, that the Board effectively denies that any additional documents of the type sought in this case were created or received and, moreover, that the Board sees nothing improper in this state of affairs. The Board considers that the grounds of this appeal are, in the main, a commentary or a critique of the Board's decision-making process.
Article 3 of the Regulations provides that "environmental information" means any information in written, visual, aural, electronic or any other material form on..." (and it proceeds to expand on qualifying subject matter).
Article 3 provides that "environmental information held by a public body" means environmental information in the possession of a public authority that has been produced or received by that authority.
Article 3 also provides that "environmental information held for a public body" means environmental information that is physically held by a natural or legal person on behalf of that authority.
Article 7(5) provides that 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.
Analysis and Findings
It is not disputed that the further information sought by the appellant would, if it exists, come within the definition of "environmental information". Furthermore, the appellant does not dispute the Board's partial reliance on the availability for public inspection of information contained in its planning files as a reason for not supplying him with such information. What is at issue in this case is access to environmental information which the appellant says ought to exist but which the Board says does not exist, at least not in any material form.
The legislation grants a right of access to environmental information which is held by or for a public authority. One effect of Article 3 is that, in order to constitute environmental information, information must exist in material form. Article 7(5) of the Regulations obliges a public authority, when the requested information is not held by or for it, to inform the applicant of that fact as soon as possible. The Regulations do not describe such an outcome as a "refusal", but Article 4(1)(a) of the Directive makes it clear that such an outcome constitutes a "decision to refuse".
The Board provided me with details of the steps which it had taken to ensure that all relevant records were located and it has confirmed that it discovered no further relevant records. The Board is not claiming to have mislaid any documentary or other material records: its position is that the information sought is not in its possession in any material form, and that it was neither produced nor received by the Board in any material form, and that it is not held by any natural or legal person on its behalf. It is notable that the appellant does not insist that access to records is being withheld by the Board. In his submission to this Office he acknowledges the possibility that the information he seeks may have been "kept solely in the minds of those considering the matter" and may never have been committed to written form. That, in fact, is the Board's position. In all of the circumstances, I have no reason to doubt the Board's assertion that no further relevant information is held by or for it.
In this case, the appellant asked the Board, if it truly did not possess a written record of both the EIA process and conclusion, to retrospectively create such a written record. The Aarhus Guide says (at page 83) that if a public authority does not hold the information requested, "it is under no obligation to secure it under (Article 3), although that would be a good practice in conformity with the preamble and Articles 1 and 3". Accordingly, the Board is not legally obliged to retrospectively put into material form information which might otherwise exist only in the minds of Board members or officials.
In light of this, I consider that the Board was justified under Article 7(5) of the Regulations in refusing the request for further information on the basis that the information sought was not held by or for it.
The Aarhus Guide states 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 requires public authorities to collect, possess and disseminate environmental information. However, as outlined above in the Scope of Review, it is not my function to investigate or to rule on such matters, and I have not done so in this case.
I affirm An Bord Pleanála's decision on the basis that the information requested was not held by or for the Board.
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. Such an appeal must be initiated not later than two months after notice of the decision is given.
Commissioner for Environmental Information