Case number: OCE-138269-Y2J4B1
4 October 2023
PDF of the issued decision can be found at the following link:
1. On 26 March 2023 the appellant made a request to the Council for “a table setting out a list of all applications received for licences in respect of telecommunications infrastructure pursuant to Section 254 of the Planning and Development Act 2000, in the period from 1 January 2021 to date”. He specified that the table should include the following details:
1. Applicant for License
2. Location of proposed telecommunications infrastructure.
3. Date of Application
4. Date of Decision
5. Whether decision to grant the licence.
He also asked that all the records be provided to him in electronic format and that an electronic link to the full file associated with each application which resulted in a decision to grant a license be provided.
2. On 20 April 2023 the Council issued its original decision granting access to a copy of the table requested. On 22 April 2023 the appellant sought an internal review of the Council’s decision specifically stating that he “had requested an electronic link to the full file associated with each such Licence application.” He added that he was “prepared to narrow the scope of the internal review to every S 254 application “pending” or “granted” in the [Dun Laoghaire Rathdown County Council] area for the years 2022 and 2023.”
3. The Council issued its internal review decision on 5 May 2023. It refused access to the electronic link requested under article 7(5) of the AIE Regulations on the basis that no electronic link to the files exists.
4. The appellant submitted an appeal of that decision to this Office on 15 May 2023.
5. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the correspondence between the Council and the appellant as outlined above and to correspondence between this Office and both the Council and the appellant on the matter. In addition, I have had regard to:
6. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, this Office will require the public authority to make available environmental information to the appellant.
7. As outlined above, the appellant, in his original request, requested “an electronic link to the full file associated with each [Licence application the subject of a decision to grant]”. Subsequently, in his internal review request, he stated that he had requested an electronic link to the full file associated with each such licence application. He also added that he was “prepared to narrow the scope of the internal review to every s254 application ‘pending’ or ‘granted’ in the DLRCC area for the years 2022 and 2023”.
8. It is important to note that a review by this Office is limited by the wording of the original request and cannot include records created after the date of that request. In addition, while the scope of a request can be narrowed by an appellant at internal review, it cannot be expanded.
9. Having examined the wording of the internal review request, while the appellant appears to have narrowed the timeframe of the information sought, it also appears that he may have sought to expand it to include all applications “pending”. Indeed, having examined the wording of the relevant part of the original request, I note that he specifically stated that it was in respect of each decision to grant a licence, that he was seeking an electronic link to the full file associated with each such licence application.
10. In all the circumstances of this case, I am satisfied that the scope of this review is concerned solely with whether the Council was justified in refusing access to the full file for licence applications in respect of telecommunications infrastructure submitted pursuant to section 254 of the Planning and Development Act 2000 in 2022 and 2023 (up to and including 26 March 2023) where a decision to grant a licence was made, under article 7(5) of the AIE Regulations on the basis that no such environmental information is held by or for it.
11. 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.
12. As indicated above, the Council refused access to the electronic link for the full files sought under article 7(5) of the AIE Regulations on the basis that no such electronic link exists.
13. In its submissions to this Office, the Council explained that “all documentation associated with license applications under section 254 of the Planning and Development Act 2000 for above ground telecommunications infrastructure are saved into a cloud based document filing system. This system is only accessible by DLR Staff. There is no electronic link whereby a member of the public can access these files.”
14. Article 6(1)(e) of the AIE Regulations provides that if an applicant desires access to environmental information in a particular form or manner, the request shall specify the form or manner of access desired. Article 7(3) provides that an appellant is entitled to be provided with information in the form or manner requested unless certain conditions, as set out in that article, apply. Having examined the wording of the appellant’s original request, it is my view that, in requesting an electronic link, the appellant specified the manner by which he desired access to the files sought in accordance with article 6(1)(e) of the AIE Regulations.
15. Accordingly, the Council appears to have taken an unduly narrow interpretation of the appellant’s request by treating it as a request for access to the electronic link, rather than access to the relevant files by way of electronic link. While I accept the appellant did request an electronic link for the full file for each licence application where a decision to grant a licence was made, taking into account his request in its entirety, I consider the question of whether the full files associated with each such licence application are held by or for the Council in some form or manner to be relevant when considering the application of article 7(5) of the Regulations.
16. In other words, where a public authority has received an application for information in particular form or manner, it will usually be necessary for the public authority to carry out searches to identify whether the information sought is held by or for it and determine if that information should be released, prior to deciding whether or not to give access to that information in the form or manner requested.
17. Indeed, article 7(5) of the AIE Regulations is concerned with whether the information sought is held by or for the relevant public authority, not with whether the form or manner of access to the information requested is readily available. If the electronic link did not exist, as the Council contends, it would not be open to the Council to refuse the request on that basis that the information requested via electronic link was not held by or for it without having made reasonable and adequate attempts to identify and locate such information. On the other hand, if the Council has identified that the information requested via electronic link is held by or for it, but not in the form or manner requested (i.e. not accessible via electronic link), it is not open to the Council to rely on article 7(5) to refuse to provide that information. Article 7(3) is the relevant provision of the Regulations to consider where a public body considers it necessary or appropriate to provide information in an alternative manner to that requested.
18. In the circumstances, I am not in a position to find that the Council has taken adequate steps to identify and locate all relevant environmental information held by or for it within the scope of the appellant’s request for the full file associated with each licence application which resulted in a decision to grant a licence. As such, I cannot find that article 7(5) applies in this case.
19. I consider that the most appropriate course of action to take at this stage is to annul the decision of the Council regarding the information within the scope of this review i.e. the full file for licence applications in respect of telecommunications infrastructure submitted pursuant to section 254 of the Planning and Development Act 2000 in 2022 and 2023 (up to and including 26 March 2023) where a decision to grant a licence was made. The Council must consider the appellant’s request for that information afresh and make a new, first instance decision in accordance with the provisions of the AIE Regulations.
20. Finally, I note that the Council has suggested in submissions to this Office that the requested information it may hold could be considered voluminous. It may be that the Council is raising the point that the appellant’s request is manifestly unreasonable under article 9(2)(a) which states that: “a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought”. In processing the request afresh, should the Council wish to rely on article 9(2)(a) of the AIE Regulations, it must have full regard to the requirements associated with that provision under the AIE Regulations, including articles 10(3), 10(4), and 10(5) of the AIE Regulations. It should also note the Minister’s Guidance, which asks public authorities to invoke that “ground for refusal sparingly and to assist the applicant (to reformulate a request for example) as appropriate”. If the Council seeks to provide the appellant with information within the scope of his request in an alternative form or manner as part of its fresh decision-making process, it must ensure that the requirements of article 7(3) of the Regulations are satisfied.
21. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision. I direct the Council to conduct a new decision-making process on the information sought coming within the scope of this review.
22. 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.
on behalf of the Commissioner for Environmental Information