Case number: OCE-121910-Y3J8P8
17 August 2022
PDF of the issued decision can be found at the following link:
1. On 28 February 2022 the appellant made the following request to Dun Laoghaire Rathdown County Council (the Council) under the AIE Regulations:
“The most up to date results of the Brent Geese tagging project including the raw data in Excel format (https://www.dlrcoco.ie/en/biodiversity/identifying-brent-geese-dlr).”
2. As the Council did not issue a decision within the timescales stipulated within the AIE regulations, the appellant requested an internal review on 28 March 2022.
3. On 8 April 2022, the Council issued its internal review. It said it is unable to provide the information requested on the basis that it currently does not hold any of the relevant information as the tagging project forms part of a research project being conducted by a PhD student which had yet to be completed and published.
4. The appellant sought a review by my Office on 11 April 2022.
5. I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review, I have considered the submissions made by the appellant and the Department. In addition, I have had regard to:
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. The Council acknowledged in their submission to my Office that it was obliged under article 7(1) of the AIE Regulations to respond to the appellant’s original request for information within one month. It accepted that the request was overlooked due to an oversight and staff changes at the Council.
8. Notwithstanding the above, the scope of this review is concerned solely with whether the Council was justified in refusing access to the information requested on the basis that no such environmental information is held by or for the Council, as per article 7(5) of the AIE regulations.
The Parties’ Submissions
9. The appellant’s submission to my Office can be summarised as follows:
10. All of the appellant’s assertions as listed above were put to the Council by my Office for comment on 8 July 2022, alongside further questions on what searches where carried out by the Council to locate the relevant information.
11. In its response to my Office’s request for further information, the Council responded with the name of the Council’s Biodiversity Officer. It restated that currently the tagging project forms part of research being conducted by a PhD student who has not completed the studies yet, and that as soon as the PhD is complete, the results will be in the public domain. It said that the Council’s Biodiversity Officer has been linking in with the student and will be updating the Council’s AIE Officer also, once the study is complete.
12. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. My approach to dealing with cases where a public authority has effectively refused a request under article 7(5) is that I must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply. It is not normally my function to search for environmental information.
13. I note the Council, in its submissions to my Office, has identified that the person responsible for holding such information or knowing where it is held is the Biodiversity Officer. I also note its confirmation that the Biodiversity Officer has been linking in with the PhD student and will be updating the AIE officer also, once it is complete. This is an indication that the Council has received and therefore may hold information pertaining to the project which the appellant has requested information on.
14. In this case, I cannot find the Council was justified in refusing access to the requested environmental information on the basis that no relevant environmental information was held by or for it. I have come to this conclusion based on the following:
15. Taking all of the above into account, the Council has not demonstrated that it carried out sufficient searches to justify its stance that the requested environmental information is not held by or for the public authority concerned.
16. I am not satisfied that it has taken adequate steps to identify and locate all relevant environmental held by it. As such, I cannot find the Council was justified in refusing access to the requested environmental information on the basis that no relevant environmental information was held by or for it.
17. I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council in its entirety, the effect of which is that the Council must consider the appellant’s request afresh and make a new, first instance decision in accordance with the provisions of the AIE Regulations. As part of its fresh decision-making process, the Council should also consider whether information held by the PhD student in connection with the project is held for the Council. I appreciate that remitting the case back to the Council causes further delay for the appellant. However, I do not believe that there is an appropriate alternative course of action to take in this instance.
18. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Council’s decision in this case. I also direct the Council in its fresh decision-making process to assess whether or not environmental information gathered and held by third parties is held on its behalf, and to make appropriate enquiries in this regard.
19. 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.
Ger Deering
Commissioner for Environmental Information