My role, which is additional to those roles I have as Ombudsman and Information Commissioner, is to decide on appeals by members of the public who are not satisfied with the outcome of their requests to public authorities for environmental information. My functions are defined in the Access to Information on the Environment Regulations 2007 (S.I. No. 133 of 2007).
The Directive and the Regulations
The regime of access to environmental information is based on Directive 2003/4/EC. The Directive has, as its key provision, the establishment of a right of access to environmental information held by public authorities. Implementation of the Directive in Ireland was brought about on 1st May 2007 when the Regulations, made by the Minister for the Environment, Heritage and Local Government, came into effect.
What is Environmental Information?
The definition of “environmental information” in the Directive and in the Regulations is broad. It covers information “in written, visual, aural, electronic or any other material form”. It identifies six separate categories:
Promoting Access to Information
The expectation is that access requests will generally be granted. There is also a requirement that public authorities should organise information on the environment which they hold “with a view to its active and systematic dissemination to the public”. The outcome of the independent, external review - which under the 2007 Regulations is carried out by my Office - is binding on the public authority.
Unlike the situation under the FOI Act, the Regulations do not identify the specific public authorities which are subject to the Access to Information on the Environment (AIE) regime. Rather, the Regulations provide a broad definition of what constitutes a public authority; they refer to:
Some commercial State bodies not already subject to either the FOI Act or to the Ombudsman Act are potentially covered by these Regulations. Where there is a dispute as to whether a body is a public authority, the person seeking the information has a right of appeal to my Office.
Unlike access under FOI, there is no upfront fee required to make a request. Neither is there any charge for the internal review application. However, there is a fee for appeal to my Office. This is set at €150 with a reduced fee of €50 for medical card holders and their dependants and third parties affected by the disclosure of the environmental information concerned.
A public authority may charge a fee where it makes information available. However, any such fee must be “reasonable having regard to the Directive”. Where a public authority proposes to charge fees, it is obliged to make a list of fees chargeable available to the public. There is a right of appeal (internal and external) on the grounds that the fee charged is excessive. - see my decision in Sligo County Council Case CEI/07/06.
The Regulations provide that a request may be refused in order to protect:
There is also provision for a public authority to notify an applicant that it does not hold the information sought. All of the exemption grounds are subject to restrictions under Article 10 of the Regulations. For instance, requests relating to emissions into the environment cannot, in most cases, be refused. In all cases, a potential exemption is subject to a public interest test and grounds for refusal must be ‘’interpreted on a restrictive basis”.
Where no decision is notified by the public authority, there is provision for a right of appeal based on a deemed refusal.
The Department of the Environment, Heritage and Local Government (the Department) has published a set of Guidance Notes, which includes the text of the Regulations and Directive. The guidance gives useful detail to which public authorities are obliged to have regard; it does not purport to be a legal interpretation of the Regulations.
During 2009, 18 appeals were received by my Office (12 in 2008). Two formal decisions were issued - summaries of these can be found at the end of this chapter. Two cases were deemed to have been withdrawn as settled once the records were released following my Office’s intervention. One case was withdrawn and a further six appeals were deemed invalid on the grounds that internal review had not been requested or the statutory appeal fee was not paid. 13 cases were on hands at the end of the year. My staff recorded 23 general enquiries about the Regulations.
While most of the appeals arose from requests to local authorities and Government Departments, An Bord Pleanála, the Environmental Protection Agency, the Attorney General’s Office and RTÉ were among the public authorities whose decisions were appealed. It is fair to say that most of the appeals arose from disputes as to whether any or further environmental information within the scope of a request was held, the format in which it was available or whether the body was a public authority for the purposes of the Regulations as opposed to cases where my Office had to decide whether or not the exceptions provided for in the Regulations had been properly applied.
Issues arising in 2009
As discussed in my report for 2008, the level of activity in appeals and in applications under the Regulations has been low. I identified two main reasons for this - the level of the fee for making of an appeal to my Office is discouraging appellants and there is a lack of awareness generally regarding the rights of members of the public under the Regulations. There have been some recent indications that the level of appeals is on the rise.
High Court case
My decision in case CEI/07/0005 - Mr Gary Fitzgerald and the Department of the Taoiseach - was appealed to the High Court in December 2008. The appeal was heard in July 2009 and, at the time of writing, judgment is still awaited.
My Office’s website www.ocei.gov.ie was launched in April 2009. Appeal decisions are available there with links to the Regulations, Directive and Guidelines.
Report to The European Commission by the Department
During the year, the Department of the Environment, Heritage and Local Government made Ireland’s first report to the European Commission on the operation of the Directive. This reporting is mandatory on Member States under Article 9 of the Directive. Review of Implementation of EU Directive 2003/4/EC on Public Access to the Information on the Environment. Report by Ireland. Monitoring period: 1 May 2007 - 31 December 2008.
I provided statistics and comments on my Office’s experience of the Regulations and my staff met with officials of the Department. My comments included suggestions for improved awareness and I indicated my Office’s willingness to provide, where possible, input into any awareness/training sessions organised by the Department for staff of public authorities. Among the issues discussed was the fact that the appeal fee is seen as a deterrent to applicants particularly in cases where responses to requests are so inadequate as to constitute ‘’non-reply’’ or a deemed refusal under the Regulations where no decision is issued within the statutory timeframes.