Case number: CEI/16/0051
The Town and Village Renewal Scheme, currently administered by the Department of Culture, Heritage and the Gaeltacht, provides financial support for projects in rural towns and villages. Under this scheme, local authorities make funding applications to the Department in respect of specific projects. On 15 September 2016, at a Laytown-Bettystown Municipal District meeting, Council officials put four projects to Council members for consideration under the scheme - a playground in Lobinstown, a public lighting project in Duleek, street and town renewal works in Duleek, and pedestrian safety measures in Julianstown. The Council members decided to apply for funding in respect of one of the projects - the street and town renewal works plan in Duleek. The Council submitted an application to the Department on 28 September 2016. On 4 November 2016 the Department published a decision to allocate €63,300 to the Duleek project.
On 24 October 2016 the Council received a request for access to environmental information from the appellant, pursuant to article 7 of the AIE Regulations. The appellant requested access to all information "concerning the recent decision to allocate €60,000 from the town and village renewal scheme to a project in Duleek". The appellant specified that the scope of its request included any information held on the following:
In a decision of 15 November 2016, the Council granted the appellant's request in part, providing a list of projects considered and notes of the Municipal District meeting. The appellant sought an internal review of this decision on 16 November 2016. In its request for an internal review, the appellant contended that the Council's search for information had been inadequate.
In an internal review decision of 12 December 2016, the Council provided access to five sets of information relating to the Duleek scheme. The Council stated that no information was found concerning "internal approvals by officials" relating to the four proposals, or on the proposal for the "Julianstown Pedestrian Safety measures". On 15 December 2016, Right to Know appealed to my Office against the Council's decision
Under article 12(5) of the AIE Regulations, my role is to review the Council's internal review decision and to affirm, annul or vary it. In this instance, I am concerned with the question of whether the Council was justified in its decision that all relevant information had been disclosed to the appellant at internal review stage. In circumstances where a public authority grants access to certain information and contends that no further information is held, my practice is to review the adequacy of searches carried out by the public authority.
The AIE Regulations transpose Directive 2003/4/EC into Irish law. This Directive implements the first pillar of the 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). In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance]; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].
Consideration of the scope of the appellant's request
AIE requests must be made in written or electronic format. When considering an AIE request, a public authority must adopt a reasonable, objective reading of the wording of the request. The subject of the appellant's request in this case was the "recent decision to allocate" funds to the project in Duleek. At the time of the appellant's request, the Council was not aware of a decision to allocate funds to the Duleek project, as this decision had not been yet been published by the Department. The Council proceeded on the basis that the appellant's request was for information on the project selection decision made at the Municipal District meeting on 15 September 2016. The Council's approach to the scope of the request was reasonable, bearing in mind the indicative list included with the appellant's request, which refers exclusively to matters concerning the project selection process. I am therefore satisfied that the Council was justified in its interpretation of the wording of the request, although it may have been appropriate to clarify the operation of the Town and Village Renewal Scheme with the appellant at the outset.
Consideration of documents held by the Council
The Council disclosed relevant information to the appellant with its initial decision and on internal review. This information related to some of the projects under consideration, the meeting of 15 September, and information on the implementation of the Duleek project after the meeting. A document considered by the Council members at the meeting was disclosed. This document listed the proposed projects, and included a preliminary cost estimate. The Council also disclosed preliminary planning information on the Lobinstown and Duleek projects. No preliminary information on the proposed Julianstown project was disclosed, apart from the location and title of the project, and a single figure cost estimate.
Solicitors on behalf of the appellant made a submission to my Office, and noted that the information disclosed by the Council did not include preliminary consideration of the project in Julianstown. The appellant submitted that the Council should hold additional information to support of the project selection, including the application form submitted to the Department in respect of the Duleek project.
An Investigator with my Office put the appellant's queries to the Council. The Council acknowledged that it held the application form submitted to the Department under the Scheme, as well as an acknowledgement of its receipt by the Department. The Council subsequently disclosed this information to the appellant.
The Council stated that it had not disclosed the application form as did not consider it to fall within scope of the request. While I acknowledge that the application form represents information on the implementation of the Council's decision, I am willing to accept that it includes information on the Council's decision, which should have been disclosed on foot of the appellant's request. Accordingly, I find that the Department was not justified in its internal review decision, as it did not adequately account for all the relevant information it held.
Consideration of the Council's search efforts
The Council stated that in searching for relevant information, it consulted staff members responsible for bringing the funding proposals to the Council members, as well as staff members responsible for the individual projects considered. Following disclosure of the application form at appeal stage, the Council stated that it has disclosed all relevant information created up to the time of the appellant's request, and that no other information is held by or for it.
With regard the apparent lack of information on the Julianstown project, the Council stated that it was notified of the funding opportunity at short notice. It stated that as a result of this short notice, the options presented to the Council members were not all developed to the same extent. The Council also stated that it does not engage in design or consultation for projects until funding is made available for the project under consideration. The Council submitted that at the time the request was made, no specific funding had been allocated to the Julianstown project, no consultation was carried out, and no design information was held on the proposal. The Council also explained that it did not carry out a public consultation in respect of four proposals prior to the Council members' vote.
The Council stated that, in some cases, projects put forward to Council members for consideration include proposals envisaged by Council officials, but not yet otherwise progressed. The Council submitted that in such cases, the local engineer would ascribe an indicative cost to the project, notwithstanding the fact that no design, consultation or costing had taken place.
It is beyond the remit of my Office to comment on the adequacy of the Council's project selection process. For the purpose of my review, I must be satisfied that the Council has adequately explained the almost complete lack of background information on the Julianstown proposal which was put to Council members at the Municipal District meeting. In effect, the Council states that the Julianstown proposal presented at the meeting was at a very preliminary stage of consideration, and had not been substantively developed to any extent.
The reasons for the disparity between the four proposals were not explained to the appellant at internal review stage, and the resultant appeal to my Office was inevitable in circumstances where extensive preliminary information was disclosed for some proposals, and none whatsoever for others. Notwithstanding this, I am satisfied that the Council has outlined its project selection process to account for the discrepancy in information on this occasion.
On the basis of the foregoing, I am satisfied that the Council has now conducted adequate searches for information pertaining to the appellant's request.
In accordance with article 12(5) of the Regulations, I have reviewed the Council's decision on the appellant's request. The Council has acknowledged that it holds additional information, which it did not take into account when making its decision on the AIE request. I am satisfied that this information was within the scope of the appellant's request. On this basis, I find that the Council's internal review decision was inadequate. I therefore annul the Council's internal review decision. I note that the Council has disclosed the newly identified information to the appellant. In circumstance where I am now satisfied with the Council's account of the information it holds, I make no further recommendation on this appeal.
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