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 set down in the Access to Information on the Environment Regulations 2007 (S.I. No. 133 of 2007).
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 then Minister for the Environment, Heritage and Local Government, came into effect.
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:
The expectation in the scheme of the Directive and the Regulations 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 of a decision on a request by a public authority - 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.
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) published a set of Guidance Notes, which includes the text of the Regulations and Directive. These are available on the Department’s website at www.environ.ie and on my Office’s website www.ocei.gov.ie. 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 2010, 23 appeals were received by my Office (18 in 2009). Twenty one appeals were closed during the year. Ten formal decisions were issued - summaries of these are set out in the chapter following. Two cases were deemed to have been withdrawn as settled once the records were released following my Office’s intervention. Five cases were withdrawn and a further four appeals were deemed invalid on the grounds that the appeal was premature or an internal review had not been requested. Fifteen cases were on hand at the end of the year. My staff recorded seventeen general enquiries about the Regulations.
While half of the appeals arose from requests to local authorities and government departments, other public authorities whose decisions were appealed included CIE, Coillte, the Commission for Energy Regulation, EirGrid plc and University College Dublin. Among the issues still under consideration is the complex matter of whether the National Asset Management Agency (NAMA) and Anglo Irish Bank are public authorities within the meaning of the Regulations. Most of the appeals during the year 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.
Appeal decisions are published in full on my Office’s website at www.ocei.gov.ie.
Level of activity during 2010
As discussed in my Report for 2009, 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 (normally €150) is discouraging appellants and there is a lack of awareness generally regarding the rights of members of the public under the Regulations. While there has been a steady increase in the number of appeals received, the number for 2010 is still quite low, given that the Regulations have now been in place for over three years. My staff continue to be in touch with the Department of the Environment, Heritage and Local Government in relation to the operation of the Regulations and especially the matter of awareness raising amongst public authorities as well as with the public itself.
Of the 23 appeals received in 2010, 17 were from persons who had previously had contact with this Office and are known to have an interest in environmental matters. Three individuals accounted for 14 of the appeals.
Of the ten decisions issued in 2010, six of these related to appeals from one individual and the issues which arose in these appeals were similar.
Handling of requests by public authorities
Appeals dealt with more recently brought to light numerous instances of poor handling by public authorities of requests made under the Regulations and, where relevant, these are referenced in the formal decisions which I issued. It is a matter of some concern to me that, almost four years after the Regulations came into effect, the level of awareness among public authorities of the statutory requirements remains low. Issues identified include:
It is vitally important that public authorities have in place proper procedures for dealing with requests under the Access to Information on the Environment Regulations and that I, as Commissioner, can rely on the validity of statements made to me by public authorities in dealing with appeals. Decisions made by me are final and binding on the affected par ties, unless appealed to the High Court within two months of the decision. It is vital that all public authorities cooperate with my Office diligently and fully.
* Decisions published on website www.ocei.ie
Communication between applicants and public authorities
It seems to me that, in general, there is an onus on applicants and public authorities to cooperate where necessary to ensure that requests are dealt with properly in the first instance and thereby avoiding the need for appeals to my Office to clarify and rule on matters that could have been cleared up at a much earlier stage.
Notice under Article 12(6) of the Regulations
This Article provides that as Commissioner, I may do certain things in dealing with an appeal. These include that I may:
What constitutes a public authority?
While this issue has arisen previously and I have addressed it in earlier decisions, during 2010, I have been asked to adjudicate on whether NAMA and Anglo Irish Bank are public authorities for the purposes of the Regulations. This point raises significant issues of statutory interpretation and at the time of writing was still under active consideration.
My role as Commissioner
In a number of decisions, I found it necessary to emphasise that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally. This means that my Office does not have the authority to investigate complaints against public authorities or to provide an alternative dispute resolution mechanism with respect to actions taken or not taken by public authorities; my role is confined to that prescribed in relation to appeals against decisions on requests for access to environmental information.
This issue has arisen in cases where much of the applicant’s submissions concern criticisms of public authorities or where it is clear that the appeal to my Office is another element of a protracted engagement with a public authority.
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. My decision in this case, summarised in my 2008 Annual Report, directed the release of one record which was regarded as being a report of discussion at Cabinet on Ireland’s greenhouse gas emissions. In arriving at my decision, I found that the request related to information on emissions into the environment and I did not find it possible to interpret the par t of the Regulations covering that matter as being in conformity with the provisions and objectives of the Directive.
The appeal was heard in July 2009 and judgment was delivered by Mr Justice O’Neill on 4 June 2010. The High Court held that I had erred in law and upheld the Taoiseach’s appeal.
The Court found that the jurisdiction given to me was confined to the Regulations and that I had exceeded my jurisdiction and was not entitled to embark on a consideration of whether the Regulations correctly transposed the Directive, and that I had no jurisdiction to disapply the Regulations, in particular Article 10(2). The Court also found that a meeting of the Government was “internal communications of public authorities” and governed by Article 9(2)(d) of the Regulations and not “proceedings of public authorities” as governed by Article 8(a)(iv). The Court refused my application for a reference to the European Court of Justice under Article 234 of the Treaty of the European Union stating that the High Court is not a court of last resort in Ireland with competence to deal with the issues which have arisen in this case.
The Court noted that Article 12(9)(a) of the Regulations permits me to refer any question of law to the High Court for determination.
My Office appealed this judgment to the Supreme Court on 17 August 2010 and a date for hearing is awaited.
*The Office was established with effect from 1 May 2007.
Outcome of CEI appeals by year
*The Office was established with effect from 1 May 2007.
Appellants to CEI
*The Office was established with effect from 1 May 2007.