Case number: CEI/17/0050

Whether the OPW was justified in refusing access to additional documents or records falling within the scope of the appellant's request on the basis that no further relevant information is held by or for it

24 July 2018

Background

The background to this case relates to the significant increase in the costs of the River Nore (Kilkenny City) Drainage Scheme (the Scheme) that commenced approximately 20 years ago.  The Scheme had originally been estimated to cost €13.08 million, but by August 2003, the cost of completion was estimated to be €47.8 million.  In a 2003 report of the Office Comptroller & Auditor General (C&AG) that was examined by the Committee of Public Accounts in October 2004, the costs were partly attributed to the delays and additional costs arising from the Polychlorinated Biphenyl (PCB) contamination that resulted from a spillage at the Smithwick's Brewery into the River Breagagh that occurred in 1980.

Following informal requests to the OPW for information, the appellant made a request dated 1 November 2017 in which he sought access under the AIE Regulations to "a copy of final audits of costs relating to the Investigation of PCB contamination during the River Nore (Kilkenny City) Drainage scheme, and any ancillary audits relating [to] costs such as delays attributable to these Investigations which had a financial costs to that scheme because of these same PCB investigations; in short, . . . a copy of documents or records etc which definitively details the cost of this PCB issue on that project".  He stated that he simply needed "a figure that is accurate as this will be put out in the public domain".  In its original decision, dated 16 November 2017, the OPW explained that it was unable to provide a definitive figure on the expenditure incurred as a result of the sampling, monitoring and analysis programme in connection with the PCB contamination of spoil from the riverbed.  Included with its decision was a copy of a letter dated 8 November 2017 to the appellant in which a further explanation had been provided.  However, the OPW gave an estimate of €700,000 based on a copy of an internal memorandum dated 7 January 20014 on PCB Investigation Costs that it released with its decision.

The appellant immediately applied for an internal review of the OPW's decision because he was dissatisfied with the information provided.  He clarified that he needed "a copy of documents detailing the actual invoiced costs of the PCB problem on this scheme".  In a decision dated 14 December 2017, the OPW identified and released a number of invoices relating to the PCB investigations.  Although the invoices totalled approximately €415,000, the OPW stated that it was unable to find any other invoices related to the PCB removal from the River Nore in Kilkenny.

On 15 December 2017, the appellant appealed to this Office against the OPW's decision.  He referred to the discrepancy between the invoices provided and the estimate provided of €700,000.  He stated his belief that it is likely that "other invoices and or documents may exist and be held by or for the OPW which will explain this apparent discrepancy".

I have now completed my review under article 12(5) of the Regulations.  In carrying out my review, I have had regard to the submissions made by the OPW and the appellant.  I have also had regard to:  the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; and The Aarhus Convention:  An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention. 

Scope of the Review

In his submissions to this Office, the appellant indicated that he sought not only records definitively detailing the costs associated with the PCB investigations but also any records that may be held by the OPW's legal advisers which may facilitate an understanding of the decision-making involved in relation to the costs.  He queried in particular whether there was any legal advice regarding the spiralling costs of the project due to the PCB contamination.  However, my review on appeal is confined to the terms of the original request.  As I explained in Case CEI/16/0051 (Right to Know CLG and Meath County Council), which is available at www.ocei.ie, when considering an AIE request, a public authority must adopt a reasonable, objective reading of the wording of the request.  In this case, I am satisfied that a reasonable, objective reading of the appellant's request does not include legal advice or other legal documents on the costs of the project.  I therefore consider that my review is concerned solely with the question of whether the OPW was justified in refusing access to additional documents or records definitively detailing the costs associated with the PCB investigations during the Scheme, including ancillary costs such as delays attributable to the investigations.

Analysis and Findings

Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested information is held by or for the public authority concerned.  This Office's approach to dealing with cases where a public authority has effectively refused a request under article 7(5) is set out in previous decisions published on our website at www.ocei.ie, such as  CEI/13/0015 (Mr. Lar McKenna and EirGrid plc) and Case CEI/11/0009 (Ms. Rita Canney and Waterford City Council).  As these decisions explain, I must be satisfied that adequate steps have been taken to identify and locate relevant records, 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 information.

Accordingly, the OPW was asked by this Office to provide details of the steps taken to search for relevant records.  The details provided have been explained the appellant and need not be restated in full here.  In sum, all relevant files relating to the PCB spillage and its subsequent impact on the Scheme were examined, including dormant files archived off-site.  A number of officers with direct involvement in the Scheme who had since retired or transferred to other public authorities were also contacted but they were unable to offer any further insight into definitive costs incurred as a result of the PCB spillage.  The OPW also reactivated its former Financial Management System (which had been in use until 2006 to record all payments) in order to identify any financial transactions listed as PCB related which may have occurred, but no evidence was uncovered to suggest that any further record existed.  The OPW emphasised that the estimate of €700,000 was just that:  an estimate, as set out in the internal memorandum released to the appellant.  The OPW also emphasised, however, that the estimate of €700,000 was provided to and accepted by the C&AG in response to the issues raised by him in preparing his report on the matter. 

Given the passage of time, I accept that no further information is held by or for the OPW regarding the actual or definitive costs of the PCB investigations during the Scheme, including in relation to any delays arising from the investigations.  For the sake of clarity, I also note that it is not within my remit to require the OPW to carry out a comprehensive audit of the matter or to create new records to satisfy the concerns about the actual costs that may be attributable to the investigations taking into account such matters as delays.  I conclude that the OPW has taken adequate steps to identify and locate the existing information relevant to appellant's request in this case.

Decision

In accordance with article 12(5) of the AIE Regulations, I have reviewed the decision of the OPWl in this case.  I find that the OPWl's decision to refuse the appellant's request for access to additional documents or records definitively detailing the costs associated with the PCB investigations during the River Nore (Kilkenny City) Drainage Scheme, including ancillary costs such as delays attributable to the investigations, was justified under article 7(5) of the Regulations.  I affirm the OPW's decision accordingly. 

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

 

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