Case number: CEI/19/0022
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. Article 3(1) of the Regulations defines “environmental information held by a public authority” as meaning “environmental information in the possession of a public authority that has been produced or received by that authority”. It defines “environmental information held for a public authority” as meaning “environmental information that is physically held by a natural or legal person on behalf of that authority”. The relevant date in determining whether information was held by or for is the date the AIE request was received (see Case CEI/18/0042 (Lar McKenna and Kildare County Council), available at www.ocei.ie).
As I stated in Case CEI/19/0013, the purpose of the distinction introduced in the current AIE Directive between environmental information “held by” and that “held for” is to make sure that a public authority provides access to environmental information which it is entitled to hold but is not actually in its possession because it is kept physically on its behalf by other persons or bodies.
The appellant submits that the SCADA data was in the Council’s possession at the time she made her request for it. She states that the Council did not tell her at any stage that the SCADA data was not in its possession. She says that the Council confirmed to her in a phone call that the SCADA data was in its possession.
In Case CEI/19/0013, to which my Investigator referred the appellant when inviting her to make a submission, I found that the SCADA data was not held by or for the Council. As set out in detail in that Case CEI/19/0013, the submissions of the Council and the third party explain that on 1 February 2019 the third party provided the Council with a link to a web-based storage service from which the SCADA data could be downloaded and that this was subject to the Council signing a NDA. My Office is aware that it is only after the Council signed the NDA that it was provided with the link to where the data could have been downloaded. The link provided to the Council was valid until 20 March 2019 after which time the link expired and could no longer be used by the Council.
While it appears that the Council may have had the means to download the SCADA data at the time the appellant made her request on 1 March, it maintains that it never downloaded the data. As I stated in Case CEI/16/0033 (An Taisce and the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs), available at www.ocei.ie, a public authority is not under an obligation to obtain information that is not held by or for it at the time it receives an AIE request. As noted above, the Council submits that it did not download the SCADA data from the link provided. By way of explanation, its states that on 4 February 2019 the third party advised it that the SCADA data could not be disclosed, as this would be a breach of the NDA. It also states that on 8 April 2019 the third party verbally informed the Council that pursuant to legal advice, the third party would no longer be granting the Council access to the SCADA data and that it confirmed this in writing on 11 April 2019. The Council and the third party both provided my Office with a copy of the letter it sent to the Council on 11 April, which re-iterates what the third party told the Council on 8 April. The third party’s submissions also support the Council’s position that it did not download the SCADA data. I accept the Council's written assurance that it did not download the SCADA data from the link the third party provided to it and that its access to the data has since been rescinded. The third party also confirms that the SCADA data was not available or provided, to the Council in any other format or medium. Accordingly, I am satisfied that the SCADA data did not come into the Council's possession at the time it received the request or at any time during its processing of the request.
The Council explains that it is entitled to request the data if it is required in relation to its planning functions. The third party acknowledges that the Council is entitled to ask for the SCADA data; however, it maintains that the Council is not entitled to the data on its own account nor does it have an entitlement to receive or be provided with the data. As I stated in Case CEI/19/0013, while the Council may be entitled to request the SCADA data for a limited purpose that does not, in my view, equate to the data being held for the Council within the meaning of article 3(1). I note that the Council initially requested the SCADA data in December 2018 as part of its planning functions. The Council’s submissions explain that it subsequently appointed a consultant qualified in Acoustics and Noise Control to report on compliance or otherwise with planning conditions no. 9 and 18. It states that its consultants advised the Council that the SCADA data was not required in order to determine compliance or otherwise with the relevant planning conditions. I further note that the Council’s planning enforcement process under the Planning and Development Act 2000 (as amended) in relation to the wind farm at the centre of the case has proceeded without it requiring the SCADA data in order to carry out its planning functions.
The third party unequivocally denies that it holds the SCADA data on behalf of the Council. The third party, which is not a public authority, submits that the SCADA data is held by it for its own purposes. It states that it voluntarily provided the Council with the means to access the SCADA data, subject to the terms of a NDA. It explains that the SCADA data was collected by one of its employees and, that the data forms part of a wider collection of SCADA data that it collects on an on-going basis as part of its commercial operations. I have also reviewed conditions no. 9 and 18 of the planning permission for the wind farm (PL 23.215597), which provide that the developer shall make arrangements for the noise monitoring of the wind farm development. I do not see anything in conditions no. 9 and 18 of that planning permission explicitly requiring the third party to provide the Council with the SCADA data. Thus, I accept the third party’s position that it produced the SCADA data primarily for its own purposes. In my view, the third party’s requirement that the Council sign a NDA before agreeing to provide it with the means to access to the SCADA data supports its position.
For the reasons above, I am satisfied that the SCADA data is not held by or for the Council. I am therefore satisfied that article 7(5) of the Regulations applies.