Case number: CEI/17/0034
Based on information obtained as a result of previous AIE requests, on 10 January 2017, the appellant in this case submitted an environmental complaint to the Council regarding the suspected presence of polychlorinated biphenyls (PCBs) in a historic landfill site at Talbotsinch, Freshford Rd, Co. Kilkenny. PCBs are persistent organic pollutants which are harmful to human health and the environment. On receipt of this complaint, the Council began an investigation into the site at Talbotsinch. Part of this investigation involved undertaking a Tier 1 desktop study which it submitted to this Office was in accordance with the Environmental Protection Agency’s (EPA) Code of Practice for Environmental Risk Assessment for Unregulated Waste Disposal Sites.
On the 19 July 2017, the appellant made a request for information under the AIE regulations to the Council. The appellant clearly stated that he was making the request under the AIE regulations and outlined the information that he required. As part of this request he referred to an image of the site at Talbotsinch. As the wording of the request is important to my deliberations, I provide it verbatim below:
‘I refer you to my confidential Environmental Complaint, KK-17-1, and in particular to the desk study report purporting to be a Tier 1 assessment of the environmental risk etc relating to environmental complaint, KK-17-1.
As you can observe from the image, the red perimeter line encompasses the Area which Kilkenny county council presumably suspects to be the precise area of concern. By referencing earlier maps of that area, it appears to me that KKCOCO have essentially outlined an historic field as the suspect area. This field was part of the quarry and later landfill owned by the Brannigan family; a significant part of that quarry and landfill is not included in the attached red perimeter area of concern. That area would extend as far as the perimeter with the handball alley building and as deep as the current warehousing buildings of Chancellors mills.
1. I seek any documents which can explain why that area not been included in red perimeter?
2. Therefore I wish to have a copy of all files in all formats, documents, maps, memoranda, draft memoranda, reports, draft reports, internal council emails, notes of phones calls, minutes from meetings, emails sent to and received from non @kilkennycoco.ie email servers relating to the decision making process (and the complaint KK-17-1 in general) of why this attached red perimeter site in particular was chosen as the site of interest/concern etc.
3. I also seek the above records independently of their role in any decision making process; in other words all documents as worded above concerning that red perimeter site.
4. I also seek all correspondence in all formats with affected landowners, businesses/industries and other government bodies/authorities/ semi-state entities, relating to environmental complaint KK-17-1; as a priority the affected landowners and businesses which are within and neighbouring this red perimeter site, attached.
I am happy to discuss this request should that be necessary, and remain available to discuss it subject to a follow up email confirmation of same; please note an electronic copy of records and documents etc will suffice.’
On 2 August 2017, the Council acknowledged receipt of the request and stated that the appellant would receive a reply by 19 August 2017.
The appellant did not receive a decision on his request as required under Article 7 of the AIE Regulations in advance of 18 August 2017, which was the actual date when a decision on the request fell due.
On the 21 of August 2017, he emailed the Council seeking a response to his request. The Council wrote to the appellant on the same day saying that it was refusing his request stating that as “there is the possibility that legal action will be considered in this case and in this regard Kilkenny County Council cannot furnish you with the information requested. This information is of a sensitive nature and to release same could compromise any legal action that Kilkenny County Council may take in the future.”
On the 22 August 2017, the appellant made a request for internal review.
The appellant did not get a written decision on his internal review request and therefore acquired, as of the 17 September 2017, the right of appeal to this Office.
The appellant appealed to this Office on the 22 September 2017.
My Office recognises that article 15(5) of the Regulations implies that a case may be resolvable other than by way of a binding decision. A case may be brought to closure by way of settlement between the parties or by withdrawal of the appeal altogether. My Office carried out an appraisal of the case and tried to seek a settlement between the parties. This approach, if successful, would mean that the appellant could receive a quicker resolution of their case and from the public authority’s point of view, it would mean less time and resources required in correspondence with my Office.
However, in this case, as a settlement could not be reached between the parties, I will bring this appeal to a conclusion with a formal decision.
Scope of Review
Under article 12(5) of the AIE Regulations, my role is firstly to review the Council’s internal review decision and to affirm, annul or vary it. If I find that refusal was not justified for the reasons given in that decision, 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 and the Council. 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).
During the attempted settlement process, the appellant submitted that his request included all information held by the Council in relation to his environmental complaint as he had included this in brackets in point two of his request. The Council did not consider that this was within the scope of the request. I have carefully considered the wording of the request as reproduced above.
I am not convinced that an objective reading of this request would ever mean ‘a copy of all files in all formats, documents, maps, memoranda, draft memoranda, reports, draft reports, internal council emails, notes of phones calls, minutes from meetings, emails sent to and received from non @kilkennycoco.ie email servers’ relating to the complaint KK-17-1 in general.
I am of the view that the request should be read as meaning a copy of all files in all formats etc. relating to the complaint KK-17-1 in general showing why this attached red perimeter site in particular was chosen as the site of interest/concern etc. I base this on the fact that in point two the appellant begins with the word ‘therefore’, which links point two to point one where he seeks any documents which can explain why a particular area [the area he has identified outside the of red perimeter line] is not included inside the red perimeter line.
Point three could be read as appearing to broaden the scope of the request. However, again when examined more closely, this relates to the creation of the red perimeter line in general and not purely why a particular area was not included inside the line. This differentiates it from point one of the request but does not broaden it beyond information concerning the creation of the red perimeter line.
In the circumstances, I am satisfied that the Council’s interpretation of this request was a reasonable one.
In relation to the appellant’s submission stating that point two relates to all information in relation to his environmental complaint KK-17-1, the Council has confirmed to this Office that it has provided the appellant with all the information it holds in relation to his complaint.
Relevant AIE provisions
Article 9(1)(b) provides that a public authority may refuse to make environmental information available where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).
Article 10(3) provides that the public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.
Article 10(7) provides that where a decision is not notified to the applicant within the relevant period specified in article 7, a decision refusing the request shall be deemed to have been made by the public authority concerned on the date of expiry of such period.
The appellant’s position
My Office received numerous submissions from the appellant. I will not reproduce every detail of his arguments, but I have had regard to all of his submissions where relevant.
His position is that there are strong public interest arguments in favour of the disclosure of the information requested and he outlined these in detail. In summary, he cites the threat to public health and the public’s right to know about emissions into the environment.
The appellant submits that the area delineated as part of the Council’s Tier 1 desktop study is not correct and this would mean that the Tier 2 Environmental Risk Assessment will be flawed.
The key issue for the appellant in relation to the handling of his AIE request and environmental complaint is as stated by him in a submission to my Office is that ‘to have confidence in the process it must be as transparent as possible and I fear going about it as they are, it will not ultimately command a possible future public confidence in the Council investigation of this potentially serious environmental complaint’.
The public authority’s position
In relation to the deemed refusal at internal review stage, the Council provided to my Office a log of correspondence with the appellant. This detailed the large volume of correspondence with the appellant by phone and email relating to both his AIE request and various aspects of his environmental complaint. It submitted that there was ‘some confusion in relation to the crossover between [the appellant’s] environmental complaint and his AIE request’.
It also submitted that it has released information to the appellant at various points outside his AIE request but which related to the information covered by the AIE request.
The Council’s reason for initially refusing the appellant’s AIE request was that the information requested was considered to be of a sensitive nature. It said that the file is currently with its Enforcement Section for investigation and that there remained the possibility of legal action. Releasing the information to the appellant could compromise any legal action that the Council may possibly take in the future and the Council refused his request under article 9(1)(b) of the regulations, which is a discretionary article concerning the course of justice (including criminal inquiries and disciplinary inquiries).
In relation to the location of the red perimeter line, the Council stated that it is important to note that the site as outlined is the estimated extent of the landfill, the full extent of the landfill (and therefore the area to be considered) is to be confirmed as part of the overall project assessment as set down in the project brief for the Tier 2 phase of the site assessment.
Whether or not the Council’s refusal of this AIE request was justified
I am satisfied that the Council received a valid AIE request on 19 July 2017. Accordingly, notification of a decision fell due, at the latest, on 18 August 2017. The appellant was not notified of a decision by the Council to grant or to refuse the request on or before 18 August. In the absence of any notification from the Council to the appellant of an extension of time in accordance with article 7(2)(b) of the Regulations, this must be considered a deemed refusal. I should add that the email from the Council on 21 August 2017 cannot be considered a formal decision as it was not sent on time. Furthermore, even if it was on time, the Council did not reference which article of the regulations it was basing its decision on or make any reference to carrying out of a public interest test. There was also a deemed refusal of the appellant’s internal review request.
Deemed refusals do not come with reasons. Refusal of an AIE request without a reason is never justified. Clearly, the ‘reasons’ notified on 21 August 2017 were also deficient as the refusal was not based on the provisions in the regulations Accordingly, I must conclude that Council’s refusal to grant this AIE request was not justified.
Whether it would be appropriate for me to require Kilkenny County Council to make environmental information available to the appellant
It does not necessarily follow that because refusal of an AIE request was not justified for the reason given, or in the absence of any reason being given, that I should proceed to require a public authority to make information available to an appellant. I would need to be satisfied that the imposition of such a requirement would be appropriate in all of the circumstances.
Rather than go straight to consider or identify reasons why I should or should not now require the Council to release the information, it was necessary to first determine what information the Council held in relation to the request.
Information held by the Council that is in the Scope of the Request
During the investigation the Council confirmed that the red perimeter line referred to in the AIE request was created by an engineer with training and significant experience in carrying out Tier 1 desktop studies in accordance with the EPA Code of Practice. The red perimeter line is based on a map and an application from Smithwicks in 1984 for a waste facility permit. The Council informed my investigator that apart from the waste facility permit application and the actual photo itself with the red perimeter line, there are no other documents, maps, memoranda, reports, internal council emails, notes of phone calls, minutes from meetings or emails to or from external email servers relating to the creation of the red perimeter line.
The appellant also asked me to consider the absence of internal records in relation to this request. The Council submitted that the reason for the absence of written internal records is that the team involved are all on the same floor and that any communication was oral and instructions were issued verbally. I do not have any reason or evidence to suggest that internal records exist and are being withheld by the Council.
The Council also told my investigator that apart from a letter sent to the EPA relating to the appellant’s environmental complaint, there was no correspondence sent or received with affected landowners, businesses/industries and other government bodies/authorities/semi-state entities, relating to environmental complaint KK-17-1, dated on or before 19 July 2017 that the Council was aware of. However, on the basis of a submission made by the appellant to my Office, it emerged that there was also an email sent by the Council on 19 June 2017 to the Southern Region Waste Management Office requesting grant assistance for the Tier 2 assessment of the site at Talbotsinch. The Council subsequently provided the appellant with a copy of this email. It is a source of concern that searches carried out initially did not reveal the existence of this email.
The Council was of the opinion that it had now released all information in relation to the appellant’s AIE request. Based on the communications between my Office and the Council, I am satisfied that the Council has made reasonable efforts to search for the information held and has accounted for the absence of further records.
As I find that the Council has disclosed any information within the scope of the request that it found following reasonable searches, I cannot consider whether article 9(1)(b) or any other mandatory and discretionary grounds for refusal applies.
A public authority when making a decision should, firstly consider what information it holds that falls under the scope of the request. It should then consider whether article 9(1)(b) or any other exemption potentially applies. It then needs to consider whether the public interest in disclosure of the information outweighs the interest served by refusal.
Here, the Council failed to consider what information it held relating to the request. Had there been information withheld that fell within the scope of the request, there may have been a strong public interest in disclosure, if the information related to emissions into the environment.
While the Council can be commended for their engagement with my Office at appeal stage, on receipt of the AIE request, it should have:
· Adhered to the timelines set out in the in the AIE regulations for making an original decision and internal review decision on AIE requests.
· Engaged with the applicant in the interpretation of the scope of request.
· Borne in mind presumption in favour of release of environmental information.
· Provided a schedule of records with a decision on the request.
Had the Council followed the above steps, this case might not have been appealed to my Office.
Having reviewed the Council’s decision, I find that its refusal was not justified and its purported reasons for refusal were inadequate. I annul its decision. As during the course of the investigation, the Council provided the appellant with the information it holds relating to the AIE request and I am satisfied with its account of searches conducted for any information held, I require no further action.
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.
Commissioner for Environmental Information
24 April 2018