Cllr. Cullen and the Department of the Environment, Heritage and Local Government

• Case Number: CEI/08/0012
• Decision Date: 27 October 2009
• Issuer: Department of the Environment, Heritage and Local Government
• Applied Rules: Art.8(a)(iv), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Cllr. Cullen and the Department of the Environment, Heritage and Local Government

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/08/0012

Published on 27 October 2009

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Councillor Tommy Cullen, Deerpark, Baltinglass, Co. Wicklow

Whether the Department was justified in its refusal of access to environmental information sought by the appellant.

Summary of Commissioner's Decision

The Commissioner found that the Department's decision to refuse parts of the request was not justified except in relation to those parts of the information which she found qualified for legal professional privilege. She found that certain records and parts of records came within the exception in Article 8(a)(iv) of the Regulations and that, in accordance with Article 10, the public interest in granting that part of the request did not outweigh the interest served by refusing it.

She found that the other withheld records did not come within the exceptions in Articles 8 and 9 of the Regulations and she directed their release. She thereby varied the decision of the Department and directed it to make environmental information available to the appellant.

Her decision also commented upon the handling of the request by the Department.

Background

A request was made under the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No.133 of 2007) to the Department of the Environment, Heritage and Local Government (the Department) on 18 July 2008, for access to:

(a) and (b) all correspondence, reports, minutes of meetings and memos and internal communications between the Department and Wicklow County Council, the Environmental Protection Agency (EPA) and all other parties on the issue of illegal dumping in Wicklow in the period January 2001 to July 2008;

(c) all records including those of the Local Government Audit Office on the issue of a waste licence at Ballybeg, Rathnew, Co. Wicklow and

(d) all communications between the Department and the Council and internal records concerning the making of the Baltinglass Town Plan.

In its decision of 13 August 2008, the Department identified several files relating to the request and advised that it was granting access to the information with the exception of some documents withheld on the grounds of exceptions provided for in the Regulations. It mentioned that some of the documents related to European Court of Justice(ECJ) proceedings against Ireland, some contained legal advice or were connected with separate legal proceedings, some were internal communications of public authorities and one was being withheld by the Local Government Audit Service by reference to a provision of the Freedom of Information (FOI) Acts. It said that it would be ''a better use of resources'' if the Appellant were to inspect the files and mark those pages he wished to have copied. It invited the Appellant to view the files and I understand that he took up this invitation on 25 August 2008. The decision was then appealed by the Appellant under article 11 of the Regulations on 4 September 2008 and four additional records were released in the Department's internal review decision on 3 October 2008. The Appellant appealed the decision to my Office by letter received on 4 November 2008. The appeal was accepted as valid on 18 November 2008.

In arriving at my decision, I have taken account of the submissions of the Appellant and the Department and of the legislation governing access to environmental information i.e. the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive). I note here that, in addition to his written submissions, the Appellant contacted my Office by telephone on many occasions and made numerous oral submissions. I have examined the withheld information as copied to my Office by the Department. As the Appellant is aware, my staff met with officials of the Department in the course of this appeal in an effort to clarify the extent of information held and Department's approach to identifying and providing that information.

Scope of Review

My review is concerned solely with the question of whether the Department's decision was justified under the Regulations and the Directive.

The Regulations set out the circumstances in which an appeal may be made to the Commissioner. Under Article 12(3), an appeal may be made against a decision of a public authority under Article 11, i.e. against an internal review decision. In turn, a request for an internal review under Article 11 must relate to a request which has been refused under Article 7 which provides for the action to be taken on a request for environmental information. Therefore, the scope of the review by the Commissioner is limited to that of the original request.

My Office asked the Department to provide a schedule showing the records identified by the Appellant on his visit to the Department and indicating the records to which access was granted and the records from the relevant files to which access was refused. A copy of the scheduled records themselves was also sought and received. In the course of preparing this schedule, the Department identified further records which were relevant to the request for information. Sixteen additional records were released to the Appellant at this point in December 2008.

In her letter of 23 January 2009 to the Appellant, my Investigator, Ms. Brenda Lynch, enclosed a copy of the schedule and asked him to confirm that he had been granted access to those records marked "grant". The Department provided a copy of its letter to the Appellant of 28 August 2008 in which it said that the records 'tagged' by the Appellant were attached. In the absence of evidence to the contrary, I am taking it that the Appellant has been given access to these records. The Appellant did, however, identify further records which he believed were relevant to his request and which had not been made available to him or included in the schedule. On foot of further enquiries from my Office, the Department identified six additional records relevant to the request - of which all except one page were released. Subsequently, in April 2009, the Department identified a further twelve relevant records, of which nine were released. On examination of all of the information to which access was refused, I noted that Record 184 postdated the original request and therefore is outside the scope of the appeal.

My Investigator sent her preliminary views to the Department on 17 June 2009. She dealt with the information remaining within the scope of the review at that point in time, which comprised records numbered 47-68, 87-88, 94-96, 98-102, 105, 130, 148-149, 152, 161-7, 182 and 183 and the withheld parts of records of 131, 136 and 168 together with a draft report from the Local Government Audit Service. In its response, the Department accepted her views in relation to some of the information then within scope and agreed to release further records to the Appellant. These records were then removed from the scope of the review.

As a result, the records within the scope of the review, to which this decision relates, are those which the Department has identified as being refused by it and over which it maintains its position that access should be refused to all or part of the record under the Regulations. These are records numbered 48, 52, 61, 62, 63, 64, 65, 66, 67, 68, 87, 130, 50, 99, 101, 105 and 164 and parts of 51, 58, 88, 136, 147, 161, 165 and 167 and a draft report from the Local Government Audit Service.

Analysis and Findings

Before I examine the exceptions cited in relation to the withheld records, I wish to make some observations on the circumstances of this appeal.

Status of the Appellant

The Appellant argues in his submissions that the withholding of the information is against the common good and the public interest. In some of his submissions, he says that, as an elected representative, he is entitled to have full knowledge of all matters that have a direct connection to the functions of the local authority which he serves. He implies that my Office should facilitate him in this as an elected representative and that it is contrary to ''ethics legislation'' for officials to deny him the information that he seeks. Lest there be any doubt on the matter, I wish to point out that the Regulations and the Directive which give me jurisdiction in this case do not make any distinction between the rights of ordinary members of the public and the rights of elected representatives to have access to environmental information held by public authorities. Article 3(1) of the Regulations defines "applicant" as "any natural or legal person requesting environmental information pursuant to these Regulations " and there is no provision for the taking into account of the applicant's interest in the matter the subject of the request. Therefore, it seems to me that, subject to consideration of the public interest, the Appellant in this case has no greater or lesser right to the information sought than any other applicants would have if they sought the same information under these Regulations. Whether the Appellant has separate or additional rights under any other code is not a matter with which I can concern myself in this review.

The handling by the Department of the request and appeal

Identification of records

A particular difficulty which has arisen in dealing with this appeal is the identification of records relevant to the request. Considerable resources have been...