Case number: CEI/18/0005

Whether the Council’s refusal to provide the appellant with access to environmental information beyond that which it released on foot of the AIE request was justified on the ground of article 7(5) of the AIE Regulations because the Council did not hold further relevant information 

 

15/10/2018

CEI/18/0005


Background


The appellant submitted an AIE request to the Council on 7 September 2016, seeking information which would explain the basis on which the Council determined the boundaries of Areas of High Amenity (AHAs) in its County Development Plan (CDP).  That request led, in time, to an appeal to my Office.  In my decision on that case (CEI/16/0047, available on my website at www.ocei.ie), I found that the Council had misunderstood the full scope of the request and I expressed my expectation that it would make a fresh decision.  


The Council issued a fresh decision on 30 November 2017.  Its decision was to grant the request in full, and it released information to the appellant. The appellant requested an internal review of that decision on 15 December 2017 and described its concerns in the following terms:  
1. What was the basis for designation of the esker AHAs in the 2003 – 2009 CDP? 
2. Were ecology and geology alone sufficient disciplines upon which to base decisions on policies/objectives/ strategies in the CDP? 
3. What was the basis for the appointment of consultants to prepare the Offaly Eskers Study?
4. Are there any copies of a memo/request for submissions on any files of 10 senior staff mentioned in a memo dated 5 June 2008? 
5. Why does a hand-written note on the memo dated 5 June 2008 request that a copy of the memo be copied to its author?
6. Social and community, environmental, spatial planning, economic development, employment, enterprise etc. considerations would merit balanced consideration in any designation of AHAs in a CDP.  This does not appear to have happened in this case.
7. The necessity to define the actual boundaries of the AHAs by field survey, as referenced in the Offaly Eskers Study is fundamental. It is inconceivable that the Council would accept definition of the AHAs by external agents, without written sign- off by senior staff.
The Council issued an internal review decision on 12 January 2018.  This decision affirmed the original decision dated 30 November 2017, which means that the Council was satisfied that it had provided the appellant with access to all of the information that it held within the scope of the request.  It also responded to the specific points raised in the request for internal review and I have summarized its response by using the same numbering used above.


1. The Council said that it could not determine by way of reports or files the basis for the designation of the AHAs in the 2003 – 2009 CDP.
2. The Council did not expressly say that ecology and geology alone were sufficient disciplines upon which to base decisions to be included as policies/objectives or strategies in the CDP, but it implied that they were.
3. In relation to the basis for the appointment of consultants, the Council said tenders were sought and consultants selected.  It added that the report was part-funded by the Heritage Council. 
4. The Council said that no record of any written responses are on file.
5. The Council said that it is normal practice for a staff member who drafted a memo to copy it to him/herself. 
6. The Council said that there is no record of any written responses to the memo from the service areas cited by the appellant. 
7. The Council said that planning staff made a recommendation in relation to the AHAs, this was considered by the executive, placed on public display and subsequently adopted by the Council’s elected members.  
The appellant appealed again to my Office on 31 January 2018.  


Scope of Review


The appellant’s representative stated the basis of its appeal in the following terms: 
A. “The Council does not appear to have a record of the decision-making process for this most important CDP document. Perhaps an independent inspection of Council files might establish if any file on submissions for CDP reviews actually exists.”
B. “The fields of ecology and geology are too narrow on which to base such a far-reaching designation of AHAs in the CDP.”
C. “I do not accept that the authors of the study liaised widely with relevant stakeholders.” 
D. “One of the main recommendations in the report, that the AHA boundaries should be verified by a ‘field survey’, seems to have been ignored.”
E. “Given the Council’s statement that “there is no record of any written responses to the memo from the service areas cited by the appellant”, this raises the question: are there notes of verbal responses or indeed written responses from other ‘service areas’? Why make such a guarded response?”
My investigator engaged with the Council in relation to some of these points.  The Council confirmed that the AHA boundaries were not verified by a field survey (point D). In relation to point E, the Council confirmed that its repeated searches did not uncover any such further information. 
I take point C to mean that the appellant accepts that the Council is not withholding information on such liaison.  Point B is an opinion which had no relevance for my review.  


This left point A, i.e. the appellant’s view that the Council did not appear to have a record of the decision-making process that led to the setting of the AHA boundaries for eskers.  It was not for me to judge how a local authority should go about deciding on the boundaries of AHAs.  What was relevant to my review was the relevant information that the Council actually held.  Although the Council maintains that it granted the AIE request in full, the appellant’s appeal is, in effect, an appeal against the Council’s refusal to provide it with further environmental information.   The issue for my review was whether that ‘refusal’ was justified.  This required me to determine whether the Council held further environmental information within the scope of the request notwithstanding its assurances to the contrary. 


In carrying out my review I had regard to the submissions made by the appellant and the Council.  I also had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance); Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; and the 1998 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); and the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’). 


The appellant’s position   


The appellant’s representative stated its position on the adequacy of the Council’s search in the following terms: 
· “Offaly County Council decided to designate as an AHA, in the Development Plan, an area which was being actively worked as a Gravel Pit.  I believe that this fact was well known to the Council, and officials. The local Councillors, who approved the adoption of the County Development Plan also knew the position. There must have been some discussion, reporting and recommendation on this matter.  It is difficult to accept that such decisions would have been taken without due consideration.”
· “I do not necessarily believe that the Council is deliberately withholding information. However, given the outcome of my previous [AIE] requests, I believe that the Council may not be making sufficient effort to discover the information requested. This seems to me to be obvious, given that each subsequent enquiry by me has produced additional information.”
· “It would be reassuring to me if it were possible to have the Council’s files re-examined or independently examined, in order to determine if the search for information has been sufficient and thorough.”


The Council’s position


The Council submitted that it carried out thorough searches both initially and after my decision on the earlier appeal case on 12th October 2017.  In terms of the detail of such searches it said:
· In 2015, it assigned a member of its Forward Planning Technical team to search for records.  A physical and electronic search was carried out. The matter was taken seriously and discussed at the planning management team within the section. 
· In 2017, after my decision dated 12th October 2017, the most senior administrative officer in the planning section organised a new search including a request to all of the section heads, relevant other staff (who all would have reported to a section head in any case) and the management team. It said that there are emails on file from the Roads section (7/12/17), Environment and Water Services section (5/12/17), Fire Services (5/12/17), Tullamore Municipal District (5/12/17), Housing section (28/11/17), Human Resources 10/11/17) and Heritage Officer (13/11/17), all stating that no further relevant information was found. 
The Council submitted that, while the applicant’s view is that it ought to hold further information (on the rationale for the original designation of eskers as AHAS– and the boundaries chosen for same), it must be noted that while the designation of eskers appears in many places within the 2003-2009 CDP (notably maps 4A, 4B, 4C, 8-1, 8-2, 8-2, 8A & Table 28), that plan was reviewed very six years after that. Each new plan completely superseded its predecessor.  It said that a CDP contains tens of major policy instruments, of which AHAs are just one. Notwithstanding this (it submitted), the manager’s reports and recommendations show that the boundaries of the eskers were considered in some depth in the 2009-2015 review and justification was given for the baseline information from which boundaries were taken.  


The Council submitted that the AHA Study of July 2008 included the following:
“Other eskers:  These are designated as AHA’s in the current CDP.  The AHA boundaries are representative of the eskers on the ground, as derived from Geological Survey of Ireland (GSI) mapping, but some level of interpretation in relation to conditions on the ground is necessary when assessing development proposals on them.  The ‘Offaly Esker Study 2006’ states that while the esker system of Offaly covers [only] 579 hectares, its effect on the landscape is disproportionate to its area.  Given their value as amenities to the county, their local prominence and the potential visual impacts of developments on them, it is proposed to leave the eskers as AHA’s unchanged from the current plan”.
It submitted that the Manager’s Report July 2008 (part of the review of the CDP for the period 2009-2015) said that:
“The Council’s mapping is based on the Bedrock Aquifer Map sourced from the GSI. I consider that this is an appropriate indicator of the siting and location of eskers within the County”. 
The Council said that this was considered and accepted by the elected members.  It added that, in response to a proposal from four elected members to “remove eskers as AHAs from the draft CDP due to the lack of clear scientific evidence for such designations”, the Manager’s Report in September 2008 stated:
“Eskers are a very important and prominent feature in much of Offaly’s landscape. They are also important for reasons of valuable habitats and biodiversity and from a scientific point of view. However they only amount for a tiny percentage of the land cover in the County (Offaly Esker Study, 2006). 
As regards being designated as AHAs, this is for their landscape value primarily, because the eskers are landscape features. The term ‘esker’ derived from ‘eiscir’ which means “ridge”.  Eskers throughout the County have been extensively exploited and damaged. There are extant planning permissions for quarrying on eskers – as part of the County’s gravel industry. Their contribution to the sand and gravel industry in the County is acknowledged, however this has obviously contributed to their removal. Essentially what the AHA status on eskers does is carry a presumption against new gravel extraction on intact eskers. In relation to other developments, AHA status does not mean ‘no development’, it means that there would be much more stringent considerations applying, particularly in relation to siting and design and in the case of rural housing, that the ‘local need’ policy would apply. Development on eskers can be very obtrusive over a considerable distance. The mapping used in the current CDP, draft CDP and the Council’s Geographical Information System is as per the “Surficial Glacial and Postglacial Deposits Map” for Co. Offaly prepared by the GSI and Teagasc and printed by the Ordnance Survey of Ireland in 1999. 
The planning section is currently endeavouring to check with the GSI as to whether this map has been renewed. However, while accuracies in mapping and the associated exact mapped location on the ground may have changed and some of the eskers present in 1999 might have been removed or altered, the fact remains that the eskers as a landscape feature as a whole within the County are still present and evidence on the ground of an esker ridge is usually very obvious. Maps of AHAs are printed at a scale such as not to attempt to show clear boundaries as this would be impractical for areas which can account for many hectares. The maps are intended to indicate the AHAs and it is obvious that if an AHA for an ‘esker’ exists in a particular area, irrespective as to where the boundaries are when blown up to a different scale, that the esker as exists on the ground is the AHA”.


The Council submitted that this Manager’s Report was considered by the elected members and the amendment put forward in the four members’ submission was not passed by the elected members.  The Council said it had given copies of both of these Manager’s Reports, together with minutes of the Council meetings where they were considered, to the appellant. The Council stated that the information regarding the reviews of the CDP for the periods 2009-2015 and 2014-2020 was located as a result of a thorough search for the documentation across planning and other sections, including the management team, and including searching both physically & electronically. It said that its search for records relating to AHAs in relation to the CDP review for the period 2003-2009 located files but none relating to the actual process of designating the eskers. It added that the CDP adopted for 2003-2009 contained many mapping and text references to eskers and the plan has since been reviewed twice with the designation of eskers being raised and responded to as part of the 2009-2015 review specifically.  


The Council submitted that while the AHAs remain the same in the 2014-2020 CDP as in the 2003-2009 CDP (with one exception as detailed in previous correspondence), the documents referenced above show the rationale for the eskers’ areas and boundaries. The Council’s representative said that while he could not say so definitively, similar matters were likely to have been considered ahead of the 2003-2009 CDP.   He observed that eskers were afforded protection in many places within the 2003-2009 CDP and he maintained that the Council had acted within its rights in restating policy elements from one CDP to the next and he added that all such instruments are published in draft form for public submissions. 

 


Assessment and Finding


Article 7(5) of the AIE Regulations 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".  
This is, in effect, a ground on which a public authority may refuse (in whole or in part) a request for environmental information.  A similar provision in relation to records ''not held'' exists in the Freedom of Information Act 2014. As Commissioner for Environmental Information, I am guided in my approach by the experience of the Office of the Information Commissioner.  In cases where a public authority claims not to hold the environmental information requested, I consider that my role is to decide whether the public authority’s decision maker had regard to all of the relevant evidence and to assess the adequacy of its searches for relevant information. The evidence in such cases generally consists of information on the steps actually taken to search for the information along with miscellaneous other information about the records management practices of the public authority, 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 my function to search for records.  The Information Commissioner's approach in such 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 [i.e. the Commissioner’s] 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 environmental information that is held in a material form, except where refusal is justified. The AIE 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 records were not, at the relevant time, held by or for the public authority concerned.  


In relation to the interpretation of article 7(5) of the Regulations, I think it is reasonable for me as Commissioner for Environmental Information to take a similar approach to that which has been approved by the High Court in relation to Freedom of Information law.
In the current case I considered: the history of this case; the appellant’s submissions; the Council’s submissions and in particular its detailed account of its search efforts and the background to the designation of AHAs; the Council’s answers to questions put to it by my investigator; and the passage of time since the AHAs were first designated.  I concluded that the Council conducted an adequate search for further relevant information and I accept that it found none.


Decision


Having carried out a review under article 12(5) of the AIE Regulations, I find that the Council’s search for relevant environmental information was adequate and found no additional relevant information.  I therefore accept that the Council had granted the appellant access to all of the environmental information which it held in relation to the request and its refusal to provide access to further environmental information was justified on the ground of article 7(5) of the AIE Regulations because no such further information was held.  Accordingly, I affirm the Council’s decision and do not require it to take any further action


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 was given to the person bringing the appeal.
 

 



Peter Tyndall
Commissioner for Environmental Information