Case number: CEI/18/0042

Whether the Council was justified in refusing to provide access to the requested document because it was not held by or for the Council within the meaning article 3 of the AIE Regulations

 

24 May 2019

 

CEI/18/0042

 

Background
 

On 9 August 2018 the appellant submitted an AIE request to the Council.   He wrote:
“On 1st November 2005, Kildare County Council became the registered owner of lands at Easton, Leixlip, Co. Kildare (hereafter “the lands”). The lands are contained within Land Registry Folio No. 47656F, copy of Folio attached”. 
 
He asked for the following information:
1. A copy of the file/documentation held by Kildare County Council, or held on behalf of the Council by the Solicitor who handled the transaction/transfer for the Council, in relation to the purchase by and/or transfer of the lands to Kildare County Council.
2. A copy of Instrument D2004KW013781Q which is listed within the Folio and is registered on the Folio for the lands.
 
He added:
“For clarity, if the Council does not hold a copy of the Instrument requested at part 2 above, a copy of this Instrument should be held by the Property Registration Authority on behalf of the Council and therefore in order to process this request in accordance with the AIE Regulations the Council may either (a) request a copy of Instrument D2004KW013781Q from the Property Registration Authority, or, (b) transfer that part of the AIE request to the Property Registration Authority under the provisions of article 7(6)(a) of the Regulations.”
 
What follows does not set out every exchange between the appellant and the Council.  
 
On 3 September 2018 the Council notified the appellant that it had decided to refuse his request, saying:
“The information that you have sought would appear to be Conveyancing Documentation and does not appear to be information which falls within the definition of environmental information as set out in article 3 of the AIE Regulations.
It may be that your request has been framed in too general a manner and … you are hereby invited to make a more specific request.”
 
On the same date the appellant asked for an internal review.  He said that it appeared that the Council’s decision-maker had not examined the requested information and had simply assumed that it is not environmental information.  He asked the reviewer to examine the information to determine if it is environmental information.  He said he believed that the information sought in part 1 of his request is environmental information as it relates to the decision of a public authority to acquire land.  He said he believed that the information sought in part 2 of his request is environmental information as it contains information on the effects of a 110kV transmission line on lands owned by a public authority, including restrictions on the use of those lands. 
 
Notification of a review decision fell due on 2 October 2018.  As the appellant did not receive a decision by that date, he acquired the right to appeal to my Office.  He exercised that right on 25 October 2018 and in his appeal he said that the Council’s review decision-maker had confirmed that he had “requested copies of the requested information from the Council’s solicitors but would not have it to hand” until after the time for an appeal to my Office had expired.  
 
The Council issued a review decision on 26 October 2018.  While that decision came too late to constitute a decision made in accordance with article 11 of the AIE Regulations, it purported to affirm the original decision to refuse the request because the requested information “did not appear to be environmental information”.  
 
On accepting the appeal my Office asked the Council for a copy of the requested information. The Council said that its solicitor had asked the Property Registration Authority (PRA) for a copy of the instrument and added that “such requests typically take up to 8 – 10 weeks to issue”.  The Council later provided my investigator with a copy of the instrument, while saying that it had received a copy via its solicitors on 9 January 2019, i.e. five months after the date of the AIE request. 
 
On 17 April 2019, the appellant told my investigator that he was limiting his appeal to the “instrument”.  In other words, he was challenging the Council’s decision in relation to part 2 of his request only.  
 
When my investigator engaged with the Council, it said that while, on the date it received the AIE request it would have been “able to access the instrument from the PRA”, it “wouldn’t interpret this as the instrument being held for the Council”.  My investigator put it to the Council that this amounted to a change in the Council’s position and the Council confirmed that this was the case.   
 
For simplicity, in what follows I refer to the “instrument” as “the document”.

 

Preliminary matter
 

The right of access provided by the AIE legislation is, subject to certain restrictions, a right of access to environmental information held by or for a public authority. 
 
Article 3 of the AIE Regulations includes the following definitions:
“environmental information held by a public authority” means environmental information in the possession of a public authority that has been produced or received by that authority; 
“environmental information held for a public authority” means environmental information that is physically held by a natural or legal person on behalf of that authority;
 
The legislation does not expressly identify a point in time on which the information must be held by or for the public authority in order for the right to obtain access to the information by means of an AIE request to arise.  In the current case, I was satisfied that the Council did not physically possess the document either when it received the request, when it made its first decision on the request or when it made its review decision.  I accept that the Council came into the physical possession of the document in January 2019, after applying through its solicitors to the PRA and waiting some time for a copy to be provided.  
 
The appellant submitted that:
“The Council has held a copy of the [document] at all stages during this appeal and can be invited to make its own submissions as to whether it feels that the [document] is or is not environmental information and whether any exemptions should be applied to the release of the information”.
 
In effect, he asked me to abandon my Office’s long-established practice of confining my considerations to information that was held by or for the public authority at the point in time when it received the AIE request.  
 
I accept that the Council came into possession of a copy of the document during my Office’s investigation and before I concluded my review.  However, I regard it as implicit in the legislation that the right of access to environmental information by means of an AIE request applies to environmental information held by or for the public authority when it received the request.  In other words, I do not consider that I have jurisdiction to review the justifiability of decisions to refuse access to environmental information that was not held by or for the public authority when it received the request.  I regard this interpretation as necessary to give effect to the legislative scheme.  The legislation provides a public authority with a fixed period of time between receiving an AIE request and giving notice of a decision.  In that fixed period of time a public authority has to: ensure that it understands the request; plan and conduct a search for relevant information; compile the relevant information; and decide whether to release it or not (a process which may require consultation with third parties).  If the appellant’s view were correct, a public authority could be obliged to decide whether to grant or refuse access to information that had only become available for its examination days, hours or even minutes before notification of a decision fell due.  I do not believe that was the legislative intent.  
 
Moreover, in circumstances like those of the current case, where the information only becomes available for examination long after the time for giving notice of an internal review decision had passed, I would be required to make a first instance decision on the right of access to information that the public authority could not have examined and considered when it made either of its decisions on the request.  I consider it highly undesirable for the efficacy of the AIE appeals process for me to make first instance decisions in circumstances such as this.
 
I therefore reject this part of the appellant’s submission, for want of jurisdiction.  My Office’s position on this matter has been consistent since its foundation and I note that it is compatible with the positions of both the Office of Information Commissioner and the UK Information Commissioner’s Office.  
 
 

Scope of appeal
 

This appeal required me to determine:
1. Whether the document was held by PRA on behalf of the Council, within the meaning of the AIE Regulations.
2. If it was, whether the instrument constitutes or contains environmental information. 
 
In carrying out my review I had regard to the submissions made by the appellant, the Council and the PRA.  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; 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); the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’) and the relevant jurisprudence of the courts.

 
Whether the document was held by PRA for the Council within the meaning of the AIE Regulations. 

 
The Council’s position
 
The Council’s representative submitted that:   
[The Council] “acquired a piece of land which already had this instrument attached to the folio. Information regarding this folio of land (including the instrument) is held by the Property Registration Authority of Ireland (PRAI). The Council (as owner of the land) had the authority to seek access to this instrument from the PRAI but the Council had no cause to do so.  Therefore, at the time of the AIE request, the record was not held by the Council or its Solicitors.  The PRAI is the State organisation responsible for the registration of property transactions in Ireland and as such is the repository for documentation relating to property transactions.  I would not interpret this to mean that documentation is held for the Council by the PRAI but rather that the Council, as a party to a particular land transfer, can gain access to documentation pertaining to said transfer”. 
 
 
The appellant’s position
 
The appellant made a detailed submission on this issue. I did not cite it in full in this decision but what follows are the key points he made: 
· The fact that the Council obtained a copy of the instrument means that, as registered owner of the land, it had the right to inspect the instrument and was entitled to receive a copy.  That right is provided by rule 159(8) of the Land Registration Rules 2012, Statutory Instrument No. 483 of 2012 [published here on www.irishstatutebook.ie]
 
which provides that:
“Any person entitled to inspect a document filed in the Registry may obtain a copy of it.” 
 
· The judgment of the High Court in Minister for Health v Information Commissioner and Others [2014] IEHC 231 [available here on www.courts.ie] is relevant.  Mr Justice O’Neill stated the following [at para.41] in that judgment [which concerned the meaning of the word “held” in the context of the Freedom of Information Act 1997]:
“In my opinion, for a document to be “held” within the meaning of s. 6(1) of the 1997 Act, it must be either lawfully created by the public body in question or lawfully provided to that public body or lawfully obtained by the public body, in connection with the functions or business of that public body and the document must not be subject to any prior legal prohibition affecting it’s disclosure”.
 
· Whether or not that public authority held a physical copy of the information at the date of the request, once the information was lawfully provided to and/or lawfully obtained by the public body, the information was “held” by the public body.
 
· The case of British Union for the Abolition of Vivisection -v- The University of Newcastle [2011] UKUT 185 (ACC) also refers to the definition of “held”.  It states:
‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind.*
 
[*This passage appeared in the Upper Tribunal’s decision as a quotation from an earlier decision made by the UK’s First Tier Tribunal.]
 
· In circumstances where the Council had the standing to lawfully obtain a copy of the “instrument” in question from the PRA, the question of whether a physical copy of the instrument was in the possession of the Council is irrelevant.  The question of “held by or for” only arises where the Council was unable to lawfully “hold” or obtain a copy of the information and that the concept of “held by or for” only arises where there is a dispute about whether the Council could obtain a copy of the information.  That situation does not arise here as the Council did lawfully obtain a copy of the information and therefore, according to the rationale of O’Neill J, the Council “held” the information as it was able to able to lawfully obtain it at any stage it wished
 
· Given the purpose and spirit of the AIE Regulations, it would be overly technical to dismiss this appeal on the basis that the Council did not physically hold a copy of the information at the time the request was made. 

 
The PRA’s position
 
PRA’s position is that it did not/does not hold the instrument for/on behalf of any other body.  It submitted that it holds such records solely “as evidence of registrations that have affected the Register”. 
 

Analysis
 
Part of the appellant’s argument is that I should not find against him solely on the basis that the Council did not physically hold a copy of the information at the time the request was made. There is no question of me making such a finding.  It is clear that the absence of physical possession of a record by a public authority does not mean that the authority does not hold the record.  I am satisfied that in the current case the Council did not physically possess the document at the relevant time.  The issue before me, therefore, was whether the document was held by PRA on behalf of the Council at the relevant time. 
 
The appellant’s case appeared to rely on the following proposition:  because the Council, when it received the AIE request, was entitled to ask for and receive a copy of the document from PRA, this means that PRA held the document on the Council’s behalf, which in turn means that the Council ‘held’ it within the meaning of the AIE Regulations. 
 
I was satisfied that the Council was entitled to apply for a copy of the document and, once its application was in order, the Council could expect to receive a copy of the document in due course.  I noted that it received a copy of the document when PRA deemed it convenient to provide it and not at any time nominated by the Council. 
 
Having considered the two court judgments cited by the appellant, I was not satisfied that either judgment provides authority for the proposition that PRA held the document on behalf of the Council on account of the Council’s entitlement to ask for a copy.  Those cases dealt with the meaning of the words “hold” and “held” in specific circumstances that did not include AIE.  The question I had to answer was concerned not so much with the meaning of those words as with the meaning of the expression “on behalf of”.   
 
The Aarhus Guide provides the following guidance (at page 83) and I have emphasised key passages in bold text:
 
“A public authority is required to give access only to the information that it ‘holds’. This means that if a Party decides to provide for this exception, it will need to have defined what is meant by ‘holding’ information. However, information that is held is certainly not limited to information that was generated by or falls within the competency of the public authority. The Convention provides some guidance in article 5, paragraph 1 (a), which requires Parties to ensure that public authorities possess and maintain environmental information relevant to their functions. In practice, for their own convenience, public authorities do not always keep physical possession of information that they are entitled to have under their national law. For example, records that the authority has the right to hold may be left on the premises of a regulated facility. This information can be said to be “effectively” held by the public authority. Domestic law may already define conditions for physical and/ or effective possession of information by public authorities. Nothing in the Convention precludes public authorities from considering that they hold such information, as well as the information actually within their physical possession. If the public authority does not hold the information requested, it is under no obligation to secure it under this provision, although that would be a good practice in conformity with the preamble and articles 1 and 3. However, failure to possess environmental information relevant to a public authority’s responsibilities might be a violation of article 5, paragraph 1 (a). Moreover, where another public authority may hold the information, the public authority does have a duty under article 4, paragraph 5, to inform the applicant which public authority may have the information. Alternatively, it can transfer the request directly to the correct public authority and notify the applicant that it has done so. In either case, the public authority must take these measures as promptly as possible.”
 
This guidance, although not binding on me, reflects my understanding of the meaning of the expression “on behalf of”.  It places the public authority’s convenience centre stage.   I take the expression to mean the following (and I suggest that this is its ordinary meaning):
 
· When ‘B’ holds information on behalf of ‘A’, it does so in order to provide a service to A, as a result of an arrangement made by A, for A’s own purposes.  
· When making such an arrangement, A could decide either to keep an additional copy itself and regard the copy held by B as a back-up for use in the event of the loss or destruction of the copy which A itself holds OR A could decide that only B would hold a copy, on its behalf.  
· It would be open to A to take B’s copy back, leaving B with no copy of the information, without B having any veto on A taking such a step.   
· Where A arranges for B to hold its only copy, A would not itself physically hold a copy. However, A would (in the words of the Aarhus Guide) ‘effectively’ hold it.  
 
To my mind, that view respects the legislative intent, which, as I understand it, was to ensure that public authorities cannot put environmental information out of the reach of the AIE regime by outsourcing its storage.  
 
Applying that understanding to the present case, it is clear that PRA is not a servant of the Council.  PRA would hold the document even if the Council did not want it to and the Council could not deprive PRA of its copy.  The Council has no say in how, procedurally, it may go about seeking a copy of the document. The Land Registration Rules lay down how such applications must be made.  Those rules are made by the Registration of Deeds and Title Rules Committee and endorsed by the Minister for Justice and Equality. The makers of those rules are not obliged to consult with the Council before changing those rules and they would not be obliged to give weight to any view expressed by the Council if such changes were contemplated. 
 
From the above considerations, I was satisfied that the PRA did not hold the document on behalf of the Council within the meaning of the AIE Regulations.  Article 7(1) of the AIE Regulations makes it clear that a public authority’s obligation to provide access to environmental information on foot of an AIE request is confined to circumstances where the requested information was held by or for it.  It follows that the Council cannot be in breach of that obligation where the requested information was not held by or for it.  Accordingly, the Council was entitled to refuse part 2 of the request for that reason.
 
I note that article 7(5) sets out the steps a public authority should take when, in the course of responding to an AIE request, it determines that the requested information is not held by or for it.  However, the Council’s AIE decision-makers did not make such a determination and it was much later in the appeal process when the Council realised its error in this regard.  In any event, the appellant is and was at all material times fully aware that the document was and is held by the PRA.  
 
In light of my finding, it would not have been appropriate for me to have considered whether the document at issue constituted or contained environmental information.

 

Decision
 

Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Council’s refusal to provide access to the requested document.  I vary the reason justifying refusal to rely on my finding that, since the document was not held by or for the Council when it received the AIE request, the Council was entitled to refuse to make it available. 
 

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