Cinneadh
Ms. V and Sligo County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153299-F9N8H9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153299-F9N8H9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in imposing a fee under article 15(1) of the AIE Regulations and whether the Council had established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations
20th May 2025
1. On 13 August 2024, the appellant submitted a request to the Council seeking access to information related to the identification, treatment, and eradication of Japanese Knotweed and other invasive plants by Sligo County Council over the past ten years. The appellant requested that the following information be provided in either an Excel spreadsheet or a Word table:
“1. Quantity of Japanese Knotweed and other invasive plant species treated
• Yearly Breakdown : The amount of Japanese Knotweed and other invasive plant species treated each year from 2014 to 2024, presented in a table format.
• Herbicide Usage : The type and quantity of herbicides used in the treatment of Japanese Knotweed and invasive species each year.
• Costs Incurred : The total costs associated with these treatments each year, including the cost of herbicides, equipment, and any other related expenses.
2. Locations of Japanese Knotweed Treatment
• Townland Data : A detailed list of locations where Japanese Knotweed and other invasive plant species was treated, categorised by species and townland and year.
• Identification Methods : Information on how these locations were identified, including whether through public reports, Council inspections, road works, or any other means.
3. Treatment Execution
• Staff Involvement : Information on whether the treatments were carried out by Council staff or by external contractors.
• Man Hours : The total man-hours spent on Invasive plant treatment each year, broken down by Council staff and contractors.
• Contractor Details : If contractors were used, please provide the names of the contractors and the costs associated with their services.
4. Additional Information
• Eradication Effectiveness : Any available data on the effectiveness of the treatments, such as follow-up inspections or assessments of re-growth.
• Public Awareness Campaigns : Information on any public awareness campaigns conducted by the Council to inform residents about Japanese Knotweed, including the timing and methods of these campaigns.
• Council Policies : Details of any specific policies or protocols that Sligo County Council has in place for managing and eradicating Japanese Knotweed and other invasive plant species”.
2. On 13 September 2024, the Council contacted the appellant and advised, under Article 7(2)(b) of the AIE Regulations, that it was extending the deadline for a decision by one month and informed the appellant that she would be provided with a “_decision as soon as possible, but at the latest by 11th October 2024”.
3. On 16 September 2024, the appellant was advised “Sligo County Council does not hold the records relating to the treatment of Japanese Knotweed on National Routes. However, it is considered that the records you are seeking may be held by the FOI Section of Transport Infrastructure Ireland (TII)”. Further on 20 September 2024, the Council informed the appellant of the charges associated with the AIE request, stating “Search, retrieval and supply of information in the manner requested: €20.95 per hour. It has been determined that staff will spend approximately 17.5 hours compiling this information which equates to a fee of €366.00”.
4. On 20 September 2024, the appellant requested an internal review of the decision to impose fees on the grounds they were unreasonable and disproportionate. The appellant specifically requested;
• “Waive the €366.00 fee due to its excessive nature, my financial circumstances, the lack of transparency in the fee calculation and my right to access Environmental information .
•Provide a detailed breakdown of the time estimate for 17.5 hours.
•Conduct a full review to ensure all information falling within the scope of my request has been identified for release.
•Publish a means based fee waiver policy for low income individuals and medical card holders, in line with practices of other public authorities”.
5. On 10 October 2024, the Council issued its internal review decision. The Council confirmed the majority of the time to process the request resulted from “putting townland names to the coordinates of the sites treated - our records of the treated locations are stored as coordinates only and it requires manual input to put townland names to each set of coordinates of which there are hundreds ”. The Council stated, “to avoid excessive cost and time spent I have decided to furnish you with the coordinates of the locations along with the other substantial information you have requested - this reduces the time spent by Sligo County Council from 17.5 hrs to 6 hrs ”. The Council confirmed that it would adhere to the fee of €20 published on its website which would result in a total fee of €120. The Council stated, “There is no provision in our policy to reduce this cost ”.
6. On 14 October 2024, the appellant sought to confirm if the specific elements of their request would be provided before proceeding;
“1. Yearly breakdown of the quantity of Japanese Knotweed and other invasive species treated from 2014 to 2024.
2.Herbicide types and quantities used each year for treatments.
3.Costs incurred for treatments, including herbicides, equipment, and other related expenses.
4.Man hours spent on treatments and whether these were carried out by Council staff or contractors, as well as the names of contractors and the costs associated with their services.
5.Data on the effectiveness of the treatments, including any follow up inspections or regrowth assessments.
6.Information on public awareness campaigns conducted by the Council to inform residents about Japanese Knotweed ”.
7. On 17 October 2024, the Council issued a further decision to the appellant part granting their request, stating;
“1. I am forwarding records requested as part of Sligo County Council’s Invasive Alien Plant Species (IAPS) Programme for Regional and Local Roads .The records are detailed in Schedule 1 and Schedule 2 attached .
2.I am also forwarding records requested detailing the treatment of Japanese Knotweed and other Invasive Plant Species as carried out by various sections of Sligo County Council. These records are detailed in Schedule 3 attached ”.
8. The appellant appealed to my Office on 31 October 2024.
9. I have now completed a review on behalf of the Commissioner for Environmental Information under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the information provided by the Council. In addition, I have 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’).
10. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
11. 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. Article 11(5) of the Regulations sets out that a reference to a request being refused, in whole or in part information includes a request that has not been dealt with in accordance with Articles 3, 4 or 5 of the AIE Directive, (including the ground that the amount of the fee charged under article 15(1) is excessive.)
12. In this appeal, the Council decided to part grant the appellant’s request, subject to payment of a fee. The appellant submits that the fee in this case is not reasonable and “relevant records have not been properly searched for ”. As such the scope of my review in this case is firstly whether or not the request has been dealt with in accordance with Article 5(2) of the AIE Directive and article 15(1) of the AIE Regulations.
13. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is also to investigate whether the Council has taken all reasonable steps to identify the requested information.
14. On 31 October 2024, the appellant provided a submission to this Office on the grounds the “revised fee remains excessive given my financial circumstances, and Sligo County Councils policy to not offer fee reductions for low income or medical card holders” . The appellant requested for the fees to be waived as the fees and the specific information requested was not agreed on before “incomplete information was provided by Sligo County Council”.
15. The appellant maintained “The AIE Regulations mandates that fees should be reasonable, and the Aarhus Convention emphasises equitable access to environmental information, especially for those with limited financial means ”. The appellant argued “The absence of a fee reduction mechanism is inconsistent with principles of accessibility, a core tenet of the AIE Directive and Aarhus Convention ”. The appellant outlined five grounds for appeal;
1. “_Excessive Fees without Provisions for Low-Income or Medical Card Holders
2. Public Interest Justifies Reduced or Waived Fees
3. Data Management Practices Should Not Impose Costs on the Public
4. Lack of Clarity on Scope of Information to Be Provided
5. Concern over Fees as a Potential Deterrent_”.
16. On 14 November 2024, this Office received an email from the Council which stated “The initial request involved providing a substantial amount of information – requiring a staff member to spend up to 2.5 working days putting together the information in the manner requested. This equated to a fee of €366 using the rate of €20.95/hour ”. The Council also confirmed there were license issues with providing original maps and a new map would have been required and the locations marked manually. As a result, the Council decided providing the coordinates of the locations, which were already available, would reduce the time spent by staff on the request to 6 hours, and result in a fee of €120.
17. The Council confirmed they did not commence keeping records of this nature until 2018 and all the records kept since 2018 had been provided. The Council stated, “records of man hours for this type of work are not kept ”. The Council confirmed all information was provided to the appellant prior to payment of fees and stated, “the council will agree to waive the payment of fees in this instance ”.
18. On 28 February 2025, the appellant was contacted by this Office and informed of the Council’s decision to waive the fee in this case and requested to confirm how they wished to proceed. The appellant responded on the same date confirming they wished to continue with the appeal.
19. The appellant stated “Under the AIE Regulations, fees must be reasonable and must not serve as barriers to information. Applying rigid fees without an accessible reduction policy, especially where there is public interest restricts the public's right to information and conflicts with the accessibility principles of the AIE Directive.”
20. Article 15(1) of the AIE Regulations broadly transposes article 5 of the Directive and provides:
“15 (1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive .
(b)Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to article 5(1)(d) .
(c)Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested .
(d)Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2) for the provision of such copies.”
21. The AIE Directive makes it clear that public authorities are entitled to charge a fee for the supply of environmental information provided the fee does not exceed a reasonable amount. Article 5(2) is transposed into national law by article 15(1)(a) of the AIE Regulations which provides that public authorities are entitled to charge a fee so long as the fee is reasonable. To determine whether the charge imposed by the Council in this case had a deterrent effect on the appellant or restricted their right of access to information, account must be taken of their economic situation. The Council originally outlined a charge of €366 based on a rate of €20.95 per hour and an estimated staff time of 17.5 hours to compile the information. The Council outlined there were license issues with providing original maps and a new map would have been required and the locations of each of the co-ordinates marked manually. Following an internal review request by the appellant on the grounds the fees were unreasonable and disproportionate the Council decided providing the coordinates of the locations, which were already available, would reduce the time spent by staff on the request to 6 hours, and result in a fee of €120. The appellant had correctly highlighted the fees published on the Council website were set at €20 an hour and not at €20.95, and this rate was adhered to by the Council. I consider that in providing for such a reduced rate and considering other alternatives to how the information could be provided, the Council have endeavoured to take into account the economic situation of the requestor.
22. On 14 November 2024, the Council contacted this Office and stated, “the council will agree to waive the payment of fees in this instance ”. As outlined above, the appellant was advised of the Council’s decision to waive the fees in this case and requested to confirm if they wished to withdraw their appeal or continue.
23. The appellant responded to this Office on 28 February 2025 stating, “I request that the investigation continue to address the outstanding issues of procedural fairness, compliance with AIE Regulations, data management practices, and equitable access to environmental information ”. It falls outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. This Office has no role in assessing how public authorities collect, maintain and disseminate environmental information. The role of this Office concerns reviewing appeals of requests for access to environmental information within the scope of a request, which is held by or for the relevant public authority and no more than that.
24. While the Council initially had set a charge of €366, this was reduced to €120 following an internal review request by the appellant. The Council then provided information to the appellant in advance of any payment being made and have now agreed to waive the fee in this case. As such the appeal of the fee in this case has become a moot point and I will not make any further findings on this issue.
25. In this case, the appellant also contends that the information provided by the Council “is incomplete with large sections marked “no records exist ”but without details of searches conducted ”. 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 ”.
26. 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.
27. 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.
28. 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.
29. The Council have provided a substantial quantity of information to the appellant but have failed to detail the steps taken to identify and retrieve the information, in particular in relation to the parts of the response that consist of “no records exist ”. Without the specifics of the searches undertaken by the Council there is no means by which this Office can verify whether the Council’s efforts were sufficient. Given the particular circumstances of this case, I consider that the most appropriate and efficient way of dealing with this case is to remit it back to the Council for a new internal review process. In this new internal review decision, the Council should detail the steps taken to search for the information relevant to the request, in particular where no relevant records were located, so that the appellant can satisfy herself that all reasonable steps were taken to identify and locate the information requested.
30. Having regard to the above, I cannot find that the Council has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I am unable to find that article 7(5) of the AIE Regulations can be relied upon by the Council.
31. Accordingly, I annul the decision of the Council in its entirety and direct it to consider the appellant’s request afresh and make a new internal review decision in accordance with the provisions of the AIE Regulations, and in particular the requirement to take adequate steps to identify and locate all environmental information held by it within the scope of the request.
32. 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