Cinneadh
Mr X and Irish Rail
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156354-Z3K4X2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156354-Z3K4X2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Irish Rail has established that it did not hold information in accordance with article 7(5) of the AIE Regulations
11 July 2025
1. On 01 March 2024, the appellant submitted an AIE request to Irish Rail requesting information on “the drainage channel that runs parallel to the Dublin-Maynooth railway line, specifically the area between Longford Bridge Ashtown and to just beyond Reilly's Bridge Ratoath Road, Cabra_”. The appellant specifically requested all relevant information including;
1. “Historical Background: Any available historical documentation or descriptions of the original purpose and construction details of the railway drain, particularly regarding its role in surface water management in relation to the dam effect created by the construction of the canal and later the railway infrastructure .
2.Maintenance Records: Information on the frequency and nature of maintenance and clearing activities conducted on the drain, including any existing maintenance programs to include information on the drain's entry point into the canal .
3.Physical Characteristics: Data on the size and capacity of the drain, especially where it passes under the railway line and enters the canal. This includes any engineering drawings or specifications that may be available .
4.Drain Structure Variations: Detailed information on the sections of the drain that are piped versus those that are open spanning from Longford Bridge to just beyond Reilly's Bridge. This inquiry aims to understand the structural differences and their potential impact on water flow and flood cause / mitigation potential .
5.Flyover Bridge Construction on Ratoath Road: Information related to the construction of the flyover bridge on Ratoath Road, including any alterations to the drain during this construction work and whether the functionality of the railway drain was tested after the works were completed. This to assess the impact of construction works on the drainage system's effectiveness .
6.Impact of Blockages: Information on the impact of blockages within the railway drain, including how such situations are managed. Specifically, where does the water go or how does it escape from the drain in the event of a blockage? This question is crucial for understanding flood risk and mitigation strategies in our area .
7.Impact of Recent Infrastructure Developments: Details of any works carried out on the drain during the construction of Pelletstown railway station, including any impact assessments and post-construction functionality tests to ensure the drain's effectiveness .
8.Legislative Framework: Information on any rules or legislation governing the maintenance and operation of this drainage system including any responsibilities shared with other entities such as Dublin City Council, Irish Water, or Waterways Ireland .
9.Collaboration with Other Bodies: Details of any agreements or shared responsibilities with other utilities or public bodies regarding the upkeep and functionality of the drain .
10.Impact on Flooding: Any findings or assessments determining the role of the railway ditch drain in recent flooding events at Pelletstown and Broombridge railway stations .
11.Integration with other services: Information on any other services that interact with or feed into the railway drain ”.
2. On 21 November 2024, the appellant requested an internal review based on Irish Rail’s deemed refusal of his request, as he had not received a response within the statutory timeframe.
3. On 17 January 2025, Irish Rail issued its internal review decision and provided the appellant with a schedule of records. Irish Rail identified ten relevant records, 5 of which were provided in redacted form, with Irish Rail citing section 37(1) of the Freedom of Information Act 2014, as the reason for redaction.
4. The appellant appealed to my Office on 7 February 2025.
5. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Irish Rail. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
6. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
7. Irish Rail should note that the duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, but is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed. Where a public authority refuses a request on the basis that it does not hold information within the scope of that request, it should be in a position to set out clearly, the steps it has taken to identify and retrieve relevant information.
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it.
9. The scope of this review is to determine whether Irish Rail was justified in refusing access to the requested information under article 7(5) of the AIE regulations as reasonable steps had not been taken to identify all information relevant to the request.
10. Article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows;
“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 ”.
11. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the regulations;
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information;
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
(iii) details of the individuals consulted in connection with the search;
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records;
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
12. Article 7(5) of the AIE regulations allows a public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
13. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied. What will be considered reasonable will vary from case to case.
14. The appellant maintains the response from Irish Rail “only partially addressed one question, relating to recent survey work near Ashtown railway station ”, and the rest of the request was unanswered with no reasons provided for withholding the requested information. Having reviewed the request, the decision-making records, and the information provided to the appellant, I agree with the appellant that this is the case.
15. Given Irish Rail’s failure to provide the appellant with an original decision in this case and the absence of any evidence of the searches it undertook to locate relevant information in its internal review decision, Irish Rail has not provided adequate reasons in its responses to the appellant or this Office to justify its refusal of access to the information requested. The internal review decision did not provide any reasons why some parts of the request were not answered.
16. Accordingly, it is my view that the most appropriate course of action to take in this case is to remit the matter to Irish Rail for a fresh decision-making process to be carried out. Irish Rail should issue a new internal review decision to the appellant setting out in detail the searches undertaken.
17. While it would have been open to me to seek further submissions from Irish Rail in respect of this case, I consider that given the time that has passed, it is likely that Irish Rail will need to carry out new searches in respect of the information sought in this case. Due to this, I consider that it would lead to a more efficient processing of the request if the appeal was remitted back to lrish Rail, rather than additional submissions being sought at this stage. I am satisfied that the AIE regime is best served by remitting the case back to Irish Rail in this instance.
18. If further searches identify information within the scope of the appellant’s request, then a decision on disclosure should be reached in accordance with the provisions of the AIE Regulations. If it is the case that, having taken reasonable and adequate steps to identify and retrieve information within the scope of the request, Irish Rail remains of the view that no relevant information is held by or for it, it should advise the appellant of this and set out the steps taken by it in conducting those searches.
19. Having carried out a review under article 12(5) of the AIE Regulations, I annul Irish Rail’s decision and direct it to provide the appellant with a new internal review decision.
20. 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.
______________________
Julie O’Leary
On behalf of the Commissioner for Environmental Information