Case number: Case CEI/17/0027

Whether the Department in processing the appellant’s AIE request took reasonable steps to identify and locate information held by or for it falling within the scope of the AIE request 

10 May 2018

Background

On 30 March 2017, the appellant submitted an AIE request under the AIE Regulations to the Department for “all information (including all records, documents, files, consultations, all communications by any and all means, minutes, notes, post-its, notations, memos, material, data, entries, logs, texts, reports, files, folders), relating to and/or referring to” an application for a Foreshore Lease (the Application) from 1 January 2014 to the date of the Department’s final reply. The AIE request was made “to all divisions” within the Department. 
 
The grant or otherwise of the Application at the centre of this appeal falls to the now Minister for Housing, Planning, and Local Government. The Department of Culture, Heritage and the Gaeltacht (the Department) is a statutory consultee on the Application under the Planning and Development Acts 2000 to 2017. The Department explained to this Office that as a consultee its role is to provide advice in relation the conservation of habitats and species. 
 
On 26 April 2017, the Department notified the appellant that two records falling within the scope of the AIE request had been identified and a decision had been made to grant access to both records in full. The appellant requested an internal review of that decision on 2 May 2017. The Department in its internal review dated the 29 May 2017 notified the appellant that further records falling within the scope of the AIE request had been identified and that a decision had been made to grant access to those records in full. The schedule of records attached to the internal review decision identified a further three records and access was granted in full to those records. In total the Department granted the appellant access in full to five records which comprised a series of email threads. The appellant appealed the Department’s internal review decision to my Office on 27 June 2017. 

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the Department’s internal review decision and to affirm, annul or vary it.  If I find that refusal was not justified for the reasons given, my role includes deciding whether it would be appropriate for me to require the Department to make the environmental information available to the appellant.
 
In conducting my review I took account of the correspondence and submissions made by the appellant and the Department. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered. 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), and 
  • The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide).  
Relevant AIE provisions
Article 3(1) of the AIE Regulations sets out the following definition in relation to what may be requested:
“"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”.
Article 3(1) of the Regulations defines "environmental information" as:
“any information in written, visual, aural, electronic or any other material form on ... [paragraphs (a) - (f) such as elements or factor of the environment, measures and activities affecting or likely to affect the elements or factors of the environment, etc.]”.
Article 7(5) of the Regulations provides:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.”
 
The appellant’s position
 
The appellant appealed to my Office on the grounds that the Department did not carry out an adequate and complete search in order to identify information falling within the scope of the AIE request. The appellant submitted that there were references to documents or records in the information that was released but that those documents or records were not released. The appellant also stated there was a lack of identification of records relating to the Application. In particular, the appellant outlined a number of perceived gaps in the information that had been released including that no information from certain units within the Department had been released. The perceived gaps raised by the appellant in her submissions will be summarised below in the relevant parts of my analysis of the justification of the Department’s internal review decision.
 
The public authority’s position
 
The Department’s submissions are also discussed below in the relevant parts of my analysis of the justification of its internal review decision. 
 
Analysis of the justification of the Department’s internal review decision
 
Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether information is held by or for a public authority. In cases involving article 7(5), my approach is to assess the adequacy of the searches conducted by the public authority in looking for information relevant to the AIE request. As I stated in CEI/13/0015 (Mr Lar McKenna and EirGrid plc) which is available on our website www.ocei.ie, I must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the relevant circumstances. Moreover, I noted that, in determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. I also stated that it is not normally my function to search for information.
 
Search process for information falling within the scope of the AIE request
 
My investigator asked the Department to provide an account of the steps actually taken to search for information relevant to the AIE request, including if and how it extended to all divisions within the Department. The Department explained that its approach in processing an AIE request is to identify line managers and relevant units who would hold records relevant to the AIE request and that it is common practice that line managers seek to identify records held by staff reporting to them. Regarding the AIE request at the centre of this appeal, it stated that the National Parks and Wildlife Service (NPWS) Science and Biodiversity Unit coordinated the processing of the AIE request. In processing the AIE request, the Department stated that searches for information relevant to the AIE request were carried out in:
  • the NPSW,
  • the Underwater Archaeology Unit (UAU) within the National Monuments Service (NMS), and 
  • the Development Applications Unit (DAU).
It explained that the Heritage Division in the Department is comprised of the NPWS, NMS (including the UAU), and the Architectural Heritage section. It went on to say that the Architectural Heritage section did not have role to play in relation to the Application and that is why it was not included in the search. It also stated that the DAU is the section within the Department that is responsible for coordinating responses to planning applications and that records relevant to the AIE request are “primarily held by DAU as the repository and coordinating unit”. The Department clarified that requests for observations on planning applications go through the DAU and that the observations provided by staff on those applications go through the DAU to the relevant planning authority. It explained that the DAU use a database to record the process. The Department said that other divisions within the Department were not searched as in general, they are not involved in foreshore lease applications. 
The Department also stated that a search for records and information relevant to the AIE request included:
  • a search for information in paper and electronic form in all units of the NPWS, 
  • a request to the DAU for details of observations made from the Department on the Application; this included the observations of the Heritage Division including the UAU, and  
  • requests made to specific NPWS staff who made comments about the Application to provide information or records in their possession to collate a response on the AIE request.
The Department’s approach of limiting its search to units that it determined were involved in foreshore lease applications can be seen as a narrowing of the AIE request. I note the range of the AIE request which was for “all information” across “all divisions” in the Department. As I stated in the 2016 Annual Report of the Commissioner for Environment Information which is available on our website www.ocei.ie, making a universal AIE request can be counterproductive and can even lead to refusal where an unmanageable amount of information falls within the scope of the request. I reiterate that I strongly encourage applicants and public authorities to engage on the scope of AIE requests. However, a person making a request for environmental information cannot be expected to know which divisions within a public authority are likely to hold the information. Rather than unilaterally narrowing the range of the AIE request to divisions it determined were involved in foreshore lease applications, the Department should have offered assistance to the appellant in narrowing the scope of the AIE request to the divisions which may have held information relevant to the request. 
 
As I noted above, a standard of reasonableness must necessarily apply when determining whether the steps taken to identify and locate relevant information are adequate. Searching for information in response to an AIE request in all divisions of a large public authority such as the Department which holds vast quantities of information would involve considerable staff resources. In a situation where many of its divisions would not hold information falling within the scope of the AIE request, it would not serve the public interest for the Department to devote resources to searching all divisions within it for such information. In the circumstances of this case, I accept the Department’s approach to limiting its search to divisions and units within it which it had determined may hold information relevant to the AIE request due to their having a role in foreshore lease applications. Nevertheless, I repeat that the Department should have offered assistance to the appellant in narrowing the scope of the AIE request. Having accepted the scope of the Department’s search, I will consider whether the search carried out in those divisions and units was adequate, having regard to the circumstances of the case.
 
Adequacy of the Department’s efforts to identify and locate information falling within the scope of the Appellant’s AIE request
 
The Department, in response to enquiries from my investigator relating to its search for information, stated that when processing the AIE request the search was limited to records directly relating to observations it made to the Department of Housing, Planning, and Local Government on the Application. It explained that the initial search was processed on the assumption that the only information relevant to the AIE request was information relating to observations it made via its DAU and public queries made in relation to its role as a statutory consultee on the Application. The Department stated that all such information was released to the appellant in its initial decision and its internal review decision or was publicly available. Information concerning the Application is publicly available on the Department of Housing, Planning, and Local Government's website. 
 
I recognise that the Department's understanding of the scope of the AIE request was not entirely without any basis and I accept that it acted in good faith. However, the AIE request was for all information about the Application including for all records, documents, files, all communications, minutes, notes, etc. In my view, it is clear that the appellant had requested any information the Department held about the Application and not just information relating to its observations as a statutory consultee or public queries relating to same. Therefore, I consider that processing the AIE request on the assumption it was only for information relating to the Department’s role as a statutory consultee was a further limiting of the request. In addition, if the only information requested by the appellant concerned the Department’s statutory observations then it seems to me that the information requested would have been available on the relevant web page for the Application on the Department of Housing, Planning, and Local Government's website. Therefore, I do not accept that the Department was correct in assuming the AIE request related solely to the information relating to its statutory observations on the Application. It seems likely that the Department would hold information other than just observations on the Application as it would need to have considered information in order to reach the conclusions its observations were based on. For that reason, I am not satisfied that the Department took reasonable steps to identify and locate information falling within the scope of the AIE request. 
 
Additional information relevant to the AIE request
 
The Department stated that in the course of processing a separate request for information regarding the Application under the Freedom of Information Act 2014 (FOI request), which post-dated the appellant’s AIE request, six records relating to the Application were found (FOI records). The six FOI records comprised a series of email threads, a copy of which was released in a redacted form to the person who made the FOI request. The appellant also submitted a copy of the redacted FOI records to my Office as proof the Department held further information relevant to the AIE request. The Department released the redacted version of the FOI records to the appellant on the 9 January 2018. The Department provided my Office with an un-redacted copy of the FOI records. I note that a part of record number six was dated April 2017 and is outside the scope of this appeal. The FOI records are a series of emails mainly between Department officials relating to the Application. In addition, the records contain three emails from members of the public to officials in the Department raising concerns about the Application. Having reviewed the FOI records I am satisfied that they are relevant to the AIE request. The subject line of each email either refers specifically to the Application, to the geographical area of the Application or to public concerns about the application. I also accept that the existence of the FOI records shows that the Department did not take reasonable steps to identify and locate information falling within the scope of the AIE request. 
 
In addition to the FOI records, the Department went on to state that on foot of the investigation by my Office it carried out a further search for information relevant to the AIE request. In particular, it requested the UAU to search for records relating to its consideration of the Application. It stated that as a result of that search four additional records were identified and located. The Department provided my Office with a copy of the additional records. The additional UAU records are a series of email threads between Department officials and between officials and members of the public relating to the Application. Having reviewed the additional UAU records, I am satisfied the four additional records are relevant to the AIE request. I am also satisfied that they show that the Department did not take reasonable steps to identify and locate information falling within the scope of the AIE request. The Department also released the four additional UAU records to the appellant on the 9 January 2018. The Department redacted the personal details of third parties from the UAU records that were released to the appellant.
 
The appellant asked how the Department had failed to identify the records released to her on the 9 January 2018 at the time the AIE request was initially processed. I am satisfied that the failure to identify the FOI records and the UAU records during the initial search for information relevant to the AIE request is the result of the Department's narrowing of the AIE request to information about its statutory observations and public queries made about its role as a statutory consultee on the Application – a narrowing that I found above was not justified. 
 
For the reasons outlined above, I find that the Department did not take reasonable steps to identify and locate information relevant to the AIE request. As a result, I am not satisfied that the Department when making its internal review decision had satisfied itself that it had granted access to all information falling within the scope of the AIE request.  Accordingly, I find that the Department was not justified in its decision that access had been granted to all information held by or for it falling within the scope of the AIE request. 
 
Is there further information relevant to the Appellant’s AIE request held by or for the Department?
 
In considering whether the Department holds yet further information falling within the scope of the AIE request, I considered the adequacy of the Department’s efforts to identify and locate information relevant to the request and the perceived gaps in information the appellant had raised in her submissions. My investigator put the perceived gaps in information raised by the appellant to the Department and asked it to clarify each point raised by the appellant. The perceived gaps in information identified by the appellant and the Department’s responses are summarised in the following four sections:
 
1. Heritage Council
 
The appellant stated that no environmental records were identified or released within the Heritage Council division of the Department. The appellant stated that this was unlikely as the Heritage Council submitted an observation as a statutory consultee on the Application. The appellant also stated that she was aware of specific correspondence that had been sent to the Heritage Council relating to the Application. The Department submitted that the Heritage Council is not a division within the Department. It explained that while under the aegis of the Department, the Heritage Council is an independent organisation established by the Heritage Act 1995 and is prescribed as a separate consultee under the Planning and Development Acts 2000 to 2017. The Department submitted that observations made by the Heritage Council relating to the Application are a matter for the Council and are not within the scope of the AIE request. I accept that the Heritage Council is an independent statutory body and that the Department does not hold information relating to the Application for the Heritage Council. 
 
However, it does not necessarily follow that the Department does not hold information of its own relating to the Heritage Council and the Application falling within the scope of the AIE request e.g. correspondence between the Department and the Heritage Council relating to the Application. My investigator queried with the Department if, or how, it satisfied itself that it did not hold any such information. It responded that no correspondence between the Department and the Heritage Council in connection with the Application had been identified during the course of searches carried out to date. I have seen no evidence in the course of this review that contradicts the Department’s assurance that it does not hold information relating to the Heritage Council and the Application. Accordingly, I accept the Department’s written assurance that it does not hold information relating to the Heritage Council and the Application.
 
2. National Monuments Service Division
 
The appellant submitted that no environmental records were identified or released within the NMS division of the Department. The appellant stated that this was unlikely as the NMS submitted an observation as a statutory consultee on the Application. The appellant also stated that she was aware of specific correspondence that had been sent to the NMS about the Application. The Department stated that as the Application concerns a marine site the UAU, which is comprised of specialist officers with the necessary professional competence, was considered the appropriate unit to consider the Application. It said that as no archaeological concerns were identified relating to the Application the UAU did not make any comments on the Application. However as a set out above, the Department during the course of this review requested the UAU to search for records pertaining to its considerations of the Application. That search resulted in the identification and location of four additional records. Those additional records were released to the appellant on 9 January 2018.
 
3. National Parks and Wildlife Service
 
The appellant stated that no environmental records were identified or released relating to the NPWS observation on the Application or emails from members of the public to officials raising concerns about the Application. The appellant noted a response to a Parliamentary Question (PQ) by the then Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs, Heather Humphreys, TD, (Dáil Questions No. 489 and 490) which stated the NPWS provided observations on the Application. The appellant also stated that she was aware of specific correspondence that had been sent to the NPWS about the Application. As noted above, the processing of the AIE request was coordinated by the NPWS Science and Biodiversity unit. The Department stated that all units of the NPWS were searched and that many of the records identified were held by other units of the NPWS such as the Department’s regional staff. In relation to the PQs, the Department submitted that the observations referred to in the PQs were the records released to the appellant in its decisions on the AIE request. I note that the records released under the separate FOI request were between Departmental officials in the NPWS. I also note that those records were released to the appellant on 9 January 2018.
 
4. References to meetings, discussions and records in the released information
 
The appellant pointed to references to records or documents in the released information which suggested that further information relevant to the AIE request had not been identified and released. My investigator put each of the references the appellant had raised to the Department. In doing so, my investigator outlined to the Department that those references pointed to the possibility that the search conducted by it in processing the AIE request may not have included all information relevant to the request. The Department’s response went through each record or document identified by the appellant and provided a cross reference for where each document or record could be located in the released records or an explanation as to why no such document or record was held by it. Having reviewed the file in this case, I accept that the records or documents for which a cross reference has been provided in the Department's response match those queried by the appellant. Regarding the documents and records for which an explanation was provided as to why it does not hold that information, I have seen no evidence that such documents and records are held by the Department. In addition, there were four references to documentation that the Department explained were references to a document that is publicly available on the Department of Housing, Planning and Local Government’s web page for the Application. In the absence of any evidence to the contrary, I accept the written explanations given by the Department in its responses to my investigator. Accordingly, I am satisfied that the released records do not point to the possibility that further information falling within the scope of the AIE Request is held by or for the Department.
 
As I noted above, the appellant also submitted a redacted copy of the FOI records to my Office during this review. The redacted copy submitted by the appellant is the same version as the copy released to him/her by the Department on 9 January 2018. The appellant pointed to seven references to meetings, discussions and records in the FOI records as proof that the Department held further information relevant to the AIE request. In addition, the appellant queried one of the redactions in the FOI records. My investigator put the appellant’s queries to the Department, and also asked if the searches it had carried out had searched for records of any such meetings and discussions. In its response, the Department stated that it had not identified any such further records in the searches it had carried out. By way of explanation for five of the seven references to meetings or discussions the Department suggested that they may have occurred over the phone or through face to face conversations and as such no records relating them would have been created. In relation to one of the references highlighted by the appellant, the Department stated that the record was publicly available on the Department of Housing, Planning and Local Government's web page for the Application. Regarding the last of the seven references highlighted by the appellant, the Department stated that the record referred to was released to the appellant as part of its internal review decision. After considering the parties’ submissions, I accept the Department’s written assurance that it does not hold further information relating to those references to meetings, discussions and records. 
 
In relation to the redaction that was queried by the appellant, the Department explained that this was redacted at the time of releasing the records in response to the FOI request. It stated that the redaction related to the work patterns of one the officers concerned and that it is not covered by the definition of environmental information in the AIE Regulations. I have already found above that I am satisfied the FOI records are relevant to the AIE request. However having reviewed the unredacted copy of the relevant record, I am satisfied that it does not fall within the scope of this appeal. While the redacted text is in a record relevant to the AIE request, I accept that the redacted text is not environmental information within the meaning of the AIE Regulations. It is not information on the state of the elements of the environment under article 3(1)(a) nor is it information on factors affecting or likely to affect the elements of the environment under article 3(1)(b) of the definition of environmental information. Neither is it information on measures and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements under article 3(1)(c) of the definition of environmental information. It is also not information on a report on the implementation of environmental legislation under article 3(1)(d) of the definition of environmental information. In addition, it is not information on cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c) under article 3(1)(e), nor is it information on the state of human health and safety under article 3(1)(f) of the definition of environmental information. I am satisfied the information is as described by the Department, information about work patterns of one of its officers. Accordingly, the redacted information is not environmental information and therefore not within the scope of my jurisdiction and this appeal. 
 
Further perceived gaps in information
 
My investigator notified the appellant of the Department's responses to her queries regarding the records which had been released to the appellant by the Department. The appellant responded with further queries both in relation to the information originally released to her in response to her AIE request and in the further information released to the appellant on 9 January 2018. The appellant as part of her submissions submitted a number of parliamentary questions (PQs) relating to the Application and queried why they were not released to him/her in response to her AIE request. The appellant also stated that she expected the preparation of those PQs would have generated environmental information. The Department stated that there is no further information relating to them and that the PQs are publicly available on the Oireachtas website. I accept the Department's written assurance that there is no further information available relating to the PQs in the context of the AIE request. I am satisfied that PQs are publicly available on the Oireachtas website as part of the official record of the Houses of the Oireachtas and that the appellant has access to the environmental information in those PQs. 
 
My investigator cross referenced the further perceived gaps identified by the appellant with the information that was released to the appellant and with the Department's various clarifications. A number of the further perceived gaps match the information in the records that the Department have released to the appellant in response to her AIE request and during the course of the review. The outstanding queries raised by the appellant included references to other information such as a reference to "the proposed development application" submitted to the Department, a "revised scoping request" that was supplied, "[b]ased on the information provided" and a "voluntary NIS [Natura Impact Statement] screening" being prepared. The Department explained that "the proposed development application" was the documentation on the application, which is available on the Department of Housing, Planning and Local Government's web page for the Application. It stated that the "information provided" concerns information provided in correspondence which is publicly available on the Department of Housing, Planning and Local Government's web page for the Application. The Department stated that the "revised scoping request" refers to an email dated 29 September 2015 contained in record no. 1 which was released to the appellant in the internal review decision on the appellant's AIE request. 
 
The appellant also pointed to an email which referenced an "an attached scoping request" and a follow up email referring to the "scoping letter". The appellant queried if the "AIE record" i.e. the email that was released to her was "'incomplete'" as the attachment was not released. As I stated in CEI/17/0032 (Francis Clauson and Wexford County Council) which is available on our website www.ocei.ie, the focus of AIE is on environmental information and not access to records per se. It is necessary to consider records for the purpose of focusing on the information contained within, in other words, to establish if there is environmental information in the record. The Department clarified that the "attached scoping request" refers to a letter which is publicly available on the Department of Housing, Planning and Local Government's web page for the Application. I note that the follow up email, in record no. 1 which was released to the appellant at the internal review stage of her AIE request, refers to the scoping letter using the same reference as is used in the letter on the Department of Housing, Planning and Local Government's web page for the Application. I accept the Department's written assurance that the attached scoping letter is the letter which is publicly available on the Department of Housing, Planning and Local Government's web page for the Application. Accordingly, I am satisfied that the appellant has the environmental information which is contained in the "attached scoping request". 
 
Is there further information relevant to the Appellant’s AIE request?
 
After reviewing the file in this case and considering the parties’ submissions, I consider that it is reasonable to conclude that no further information relevant to the AIE request can be found that is held by or for the Department. In the absence of any evidence to the contrary, I accept the written explanations given by the Department in its responses to my investigator. I also accept the Department’s written assurance that it does not hold further information relating to the Application that has not already been released to the appellant or cannot be found on the information publicly available online such as the Oireachtas website in relation to the PQs and on the Department of Housing, Planning and Local Government's web page for the Application. 
 
While the appellant is clearly of the view that further environmental information should exist, this does not necessarily mean that such information is actually held. I do not consider it feasible or appropriate for me to continue to pursue the possibility that additional records might exist or to physically search the Department's offices. It is necessary for me to have regard to the reasonable use of my Office's resources and to bring this lengthy case to conclusion. Notwithstanding that reasonable steps had not been taken to identify and locate information falling within the scope of the AIE request at the time it was initially processed by the Department, I think that I can conclude at this point in time that, on the balance of probabilities, adequate searches have been carried out across the various divisions and units of the Department which might hold information relevant to the request. I note that the Department carried out an additional search in further divisions on foot of this review and released further information it identified relating to the Application to the appellant during this review. I accept that at this stage the Department has searched all divisions and units which are likely to hold information relevant to the AIE request. I also accept the Department’s written assurance that all documentation identified by it relating to the consultation process for the Application have been released to the appellant. In the circumstances, I am satisfied that the Department has, at this point in time, taken reasonable steps to identify and locate information falling within the scope of the AIE request. Accordingly, I find that Article 7(5) of the AIE Regulations applies and that no further information falling within the scope of the AIE request is held by or for the Department at this time. 
I emphasise as I have had to do in other cases that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally, including with respect to their records management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. It is not for me to say whether the Department ought to have held such records of such meetings, discussions and records, and, if it did hold them, whether it ought to have retained them. My role concerns access to environmental information which is held by or for the relevant public authority and no more than that.
 

Decision

Having reviewed the Department's internal review decision, I find that the Department was not justified in its internal review decision that access had been granted to all information, held by or for it, falling within the scope of the AIE request. However, I vary the decision of the Department and find that, apart from that information released by the Department which is not in scope of this appeal, it has taken all reasonable steps to search for and provide the appellant with the information requested. I also find that Article 7(5) of the AIE Regulations applies those aspects of the request for which information was not provided. As the Department released the additional records that it located that are relevant to the AIE request to the appellant, I am not making any direction requiring further release.
 

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