Christina Murphy and Laois County Council

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0024
• Decision Date: 15 June 2017
• Issuer: Laois County Council
• Applied Rules: Art.8(a)(iv), European Communities (Access to Information on the Environment) Regulations, 2007

Christina Murphy and Laois County Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0024

Published on 15 June 2017

Background

On 15 March 2016 the appellant submitted an AIE request to the Council, asking for the following:

1. A copy of the original submissions made to the 2011-2017 County Development Plan (CDP) Draft Development Plan and Draft Environmental report by -

a) The Department of the Environment, Heritage and Local Government

b) The EPA

c) The Office of Public Works

d) Caroline Goucher, Department of Communications, Marine and Natural Resources

2. A copy of the further original submissions made in relation to Addendum 2 and proposed amendments to the 2011-2017 CDP Draft Development Plan and Draft Environmental report by

a) The Environmental Protection Agency (EPA),

b) Minister for Communications, Marine and Natural Resources (DCMNR) and

c) Minister for Arts, Heritage and the Gaeltacht (DAHG)

3. A list of all meetings held between wind developers and Laois County Council / Laois Planning Department from January 2008 – current date. Please include the dates of those meetings, the attendees, the minutes and all documents, including subsequent correspondences, arising from those meetings. Wind developers should be taken to include state bodies such as Coillte, Bord na Mona etc. as well as any others seeking to have land zoned as suitable for wind energy development or seeking to develop wind energy installations.

4. All correspondence between Element Power and Laois County Council / Planning Department in the time period from 01 January 2008 - present date. Please include all meetings, the dates of those meetings, the attendees, the minutes and all documents, including subsequent correspondences, arising from those meetings.

5. Copies of all submissions from the IFA to Laois County Council regarding wind power or zoning for wind development.

6. All correspondence from SEAI / Department of Energy / Department of the Environment to Laois County Council advising, requesting or instructing that areas should be zoned for wind energy development including any instructions/guidance on how this should be conducted, in the period 01 Jan 2008 - current date.

The Council acknowledged the request and informed the appellant that it had extended the time in which to make a decision. On 28 April 2016 the Council gave notice of its decision to part-grant the request. It informed the appellant that some relevant records were available for viewing at its office. It said that it had identified 22 other relevant records. It granted full access to 8 of these, saying that these constituted all 4 of its records relating to part 1 of the request, all 3 of its records relating to part 2 of the request, and its sole record relating to part 5 of the request. It refused access to 14 records related to parts 3 and 4 of the request, on the grounds of article 9(1)(c) of the AIE Regulations, because disclosure would adversely affect commercial or industrial confidentiality. It said that there was no correspondence of the type sought in part 6 of the request (meaning that no information relating to that part of the request was held).

On 24 May 2016 the appellant requested an internal review of the Council’s decision. She said that the Council had not explained how refusal was justified under article 9(1)(c), in that it had not identified the provision of national or Community law which protects the confidentiality of such information, and had not shown how and why an economic interest would be adversely affected by disclosure.

On 22 June 2016 the Council gave notice of its internal review decision. It varied its earlier decision and refused access to the 14 withheld documents on the grounds of articles 4(2) and 8(a)(iv) of the AIE Regulations.

The appellant appealed to my Office on 20 July 2016 and confirmed that her appeal concerns the decision to refuse access to the 14 withheld documents.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is firstly to review the Council’s internal review decision in so far as it relates to the scope of this appeal and to affirm, annul or vary it. If I find that refusal was not justified for the reasons given in that decision, my role is to decide whether it would be appropriate for me to require the Council to make environmental information available to the appellant.

In conducting my review I took account of the submissions made by the appellant and the Council. I 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 information at issue

The Council’s schedule of records identified 14 withheld records, numbered 3.1 to 3.12 and 4.1 to 4.2. My investigator noticed that record number 4.2 post-dated the AIE request. When asked about this, the Council explained that it had created record 4.2 using information contained in three hand-written notes which pre-dated the request. Information in a record which post-dates an AIE request is not necessarily outside of the scope of a request (or subsequently, my review) provided that the same information was held by or for the public authority in a material form when the request was made.

I considered that it would be best in this case if I regard the information in the form in which it was held when the request was made as the record at issue. I decided therefore to regard the three hand-written notes, taken together, as the true “record 4.2” and to disregard the later-created record. This brings the number of withheld records to 16.

During the course of this review, the Council provided my investigator with one additional record which had not been found in its earlier search. While it is regrettable that the earlier search had failed to locate this record, it is commendable that, when it was located, the Council took the appropriate action by providing my Office with a copy. This record is numbered record 4.3.

I decided to regard it as also subject to the appellant’s appeal, since she appealed against the decision to refuse her access to “the withheld records” which we now know includes record 4.3. The subject records therefore number 17 in all.

The decision under review

The Council’s decision said that both article 4 of the AIE Regulations and section 38(1) of the Planning and Development Act 2000 applied to the withheld records and “therefore, in accordance with article 8(a)(iv) [of the AIE Regulations] I wish to advise you that your request for access to these records is refused”. I examined this decision closely in order to fully understand it. I began by accessing the cited legislation:

Article 4 of the AIE Regulations

(1) “These Regulations apply to environmental information other than, subject to sub-article (2), information that, under any statutory provision apart from these Regulations, is required to be made available to the public, whether for inspection or otherwise.

(2) Notwithstanding—

(a) section 38 of the Planning and Development Act 2000 (No. 30 of 2000) and any regulations made thereunder,

(b) sections 10 and 31 of the Air Pollution Act 1987 (No. 6 of 1987) and any regulations made thereunder, and

(c) sections 6 and 89 of the Environmental Protection Agency Act 1992 (No. 7 of 1992)(as amended by the Protection of the Environment Act 2003 (No. 27 of 2003)) and any regulations made thereunder,

environmental information held by, or on behalf of, a public authority shall be made available in accordance with these Regulations.”

Article 8 (a)(iv) of the AIE Regulations

“a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts).”

Section 38(1) of the Planning and Development Act 2000

“Where a planning authority gives its decision in respect of a planning application the following documents shall be made available within 3 working days for inspection and purchase by members of the public during office hours at the offices of the authority and may also be made available by the authority by placing the documents on the authority’s website or otherwise in electronic form:

(a) a copy of the planning application and of any particulars, evidence, environmental impact statement, other written study or further information received or obtained by the authority from the applicant in accordance with regulations under this Act;

(b) a copy of any submissions or observations in relation to the planning application which have been received by the authority;

(c) a copy of any report prepared by or for the authority in relation to the planning application;

(d) a copy of the decision of the authority in respect of the planning application and a copy of the notification of the decision given to the applicant; and

(e) a copy of any documents relating to a contribution or other matter referred to in section 34...