Case number: CEI/18/0011
On Wednesday 31 January 2018 the appellant submitted an AIE request to the Council seeking:
1. All records held in relation to the operations at Ballycrovane Pier, Eyeries, County Cork, arising from the examination on foot of our complaint of 5 August 2017 and your response of 9 August.
2. All records relating to the status of the restrictions on weight on the L4910 and L-4910-1.
3. All records relating to the statement released to the media by the local engineer stating “as these signs were erected at the behest of person unknown and without the benefit of the correct statutory procedures, the removal of the signs will be carried out as soon as resources will allow”.
4. All records relating to the enforcement of vehicle size restrictions in Condition 15 of planning permission WPC 10/596 at Marine Harvest Ballycrovane.
On 23 March 2018 the appellant appealed to the Council against what it saw as its ‘refusal by non-reply’.
The Council telephoned the appellant’s representative on 28 March 2018 and explained that “an error in internal communication” had led to a delay in the Council becoming aware that it had received the AIE request. The Council also explained that the request would not be dealt with as an AIE request “as it did not relate to environmental information” and it related instead “to road sizes and truck weights”. The Council suggested that a Freedom of Information (FOI) request would be more appropriate. The appellant’s representative maintained that he wanted the request to be dealt with “under AIE” and stated that he wished to have his request dated 23 March 2018 processed as an appeal [i.e. an internal review].
By 11 May 2018 the appellant had not received a review decision and appealed to my Office.
Under article 12(5) of the AIE Regulations, my role is to review the Council’s decision and to annul, vary or affirm that decision. If I find its refusal decision was not justified for the reasons given, my role is to decide whether it would be appropriate for me to require the Council to make environmental information available to the appellant.
In conducting my review I took account of the submissions made by the appellant, I 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; 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 challenged the Council’s failures, which it listed as:
Failure to respond to formally submitted request. Failure to respond to request for internal appeal i.e. the original request was dated 31 January 2018. No reply was received within the four week period and this non-reply was therefore deemed a refusal on 28 February 2018 and appealed on 23 March 2018 by email and registered post. The four week period for an internal appeal expired on 20 April 2018 and once again without a response to this internal appeal. We are therefore appealing this consistent non-response in spite of a reference number having been generated through the [Council’s] online enquiry system … on 31 January 2018 and in spite of the subsequent appeal by email and registered post.
The Council’s position
The Council accepts that the appellant submitted its AIE request to the Council’s Corporate Affairs “Ask a question” facility on 31 January 2018. It explained that “due to an internal corporate communications breakdown” the request was not passed to the Environment Directorate and, for that reason, no decision was made on the request.
The Council confirms that it had told the appellant’s representative that its AIE request did not relate to environmental information and that an FOI request would be more appropriate.
The Council submitted that following the appellant’s insistence that his AIE request should be dealt with as an AIE request and that it had made a request for internal review, the Council appointed an internal review decision maker and informed the appellant that it would expect a decision by 22 April 2018.
The Council submitted that it did not in fact give notice of a review decision by that date. Its review decision maker submitted that he had not been in a position to “assess the appeal” for workload reasons. He offered no excuse or mitigation argument and stated his awareness of the timescale that is set out in the AIE legislation. He added that he would (as of 17 May 2018) contact the relevant departments within the Council and “look to immediately close out this request”. He added (on 7 June 2018) that the Council had “already taken steps to obtain the relevant records”.
Where the AIE request was sent
The AIE request was made through an “Ask a question” facility on the Corporate Affairs section of the Council’s website. While I note that the Council’s website displays a dedicated email address for AIE requests (email@example.com), I do not know if it displayed that email address when this request was made. If it was displayed and if the appellant had used it in submitting the AIE request, the request would have been delivered with greater precision than it was in this case. I would encourage AIE requesters to seek out and use such dedicated AIE email addresses. Having said that, I note that the AIE Regulations require only that an AIE request is made to a public authority and there is no dispute in this case that the request was made to the Council on 31 January 2018.
As I have said previously in published decisions, the time-limits that apply to processing AIE requests take effect from when the request is received by the public authority and not when it has been delivered internally to the AIE officer or “relevant department”. Requesters can help public authorities by sending requests directly to published AIE email addresses wherever possible. I trust that the Council has taken steps to ensure that AIE requests will not be overlooked in a similar manner in the future if they are delivered to addresses other than that of the AIE officer.
The critical unit of time in AIE matters is the calendar month. It should be noted that this is not the same as four weeks.
While it is not disputed that the AIE request was dated 31 January 2018, the records at my disposal do not indicate if it was received by the Council before, during or after working hours on that day.
If it was received before or during working hours, the appellant would have become entitled (in the absence of any valid time extension) to receive a decision at the latest by or on 28 February (that is, one calendar month later).
Where a public authority receives a request after working hours it is my practice to regard it as having been received on the next working day. However, as there were just 28 days in February 2018, it makes no difference whether the request was received by the Council on 31 January or 1 February: in either case the appellant would have become entitled (in the absence of any valid time extension) to receive a decision, at the very latest, on 28 February 2018.
The refusal giving rise to this appeal
It is not disputed that the Council failed to give notice of a decision on the request within one month of receiving it and did not extend the time for so doing. Therefore the AIE Regulations deem that the request was refused by the Council on the last day when notice of a decision could have been validly given, i.e. 28 February 2018. Accordingly, the appellant acquired the right to ask the Council for a review on that date. It exercised that right on 23 March 2018.
It was completely inappropriate for the Council to have told the appellant that the request would not be dealt with as an AIE request “as it did not relate to environmental information” and it “related to road sizes and truck weights”. It would have been open to the Council to have advised the appellant that it did not consider the requested information to be environmental information and to suggest that an FOI request might be a better option. However, when a requester makes a valid AIE request, a public authority must deal with it as an AIE request (even if it refuses the request in due course on the ground that the requested information is not environmental information) unless the requester withdraws it. In this case the appellant rightly insisted on the AIE request being processed and insisted that its most recent request was a request for a review. I am pleased to note that the Council accepted this position and appointed a review decision-maker.
In the event, however, no review decision was delivered by 22 April 2018 and the appellant therefore acquired the right to appeal to my Office on that date. It exercised that right on 11 May 2018.
Whether the Council’s refusal of the request was justified
The Council’s refusal of the review request was a ‘deemed refusal’. Such refusals can never be justified, not least because they arise without reasons grounded in the AIE Regulations. Accordingly, I find that the Council’s refusal of this AIE request was not justified.
Whether it would be appropriate for me to require the Council to make environmental information available to the appellant
I could only require the disclosure of information when I am satisfied that it would be appropriate for me to do so. In this case I have not had sight of the withheld information because the Council has not yet assembled it. I am also disinclined to make a first instance decision on an AIE request when that is properly a function of the public authority.
Accordingly, I conclude that the best way for me to bring this case to a close is to express my expectation that the Council will proceed to give notice of a decision on this AIE request as soon as possible. It has, after all, now had the request for over four months and the AIE Regulations allow a maximum of two months for the making of a decision, and then only when the public authority validly extends time.
Having reviewed the Council’s response to this request I find that its refusal was not justified. I expect the Council to give an initial decision on this AIE request to the appellant without further delay but no later than on 12 July 2018, which is one month from the date of this decision. In doing so, the Council should inform the appellant of its right to request a review if dissatisfied. In due course, if this case is brought back to my Office on appeal, I will waive the appeal fee and treat it as a priority case in light of its history.
While the Council’s handling of this request was poor, I am pleased to note that it did not try to defend the indefensible. Although its internal review decision maker indicated that the reason why no review decision was made on time was “workload reasons”, he did not offer that as an excuse and he stated that he is fully aware of the statutory time limits that apply to AIE requests. I am left with the impression that the Council either has a resourcing difficulty or a difficulty with inter-departmental cooperation on AIE matters or some combination of the two. Whatever the problem is, it needs to be urgently addressed and resolved.
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.
Commissioner for Environmental Information