Councillor Thomas Cullen and the Department of Environment, Community and Local Government

• Case Number: CEI/15/0018
• Decision Date: 10 November 2016
• Issuer: Department of Environment, Community and Local Government
• Applied Rules: Art.3(1) Art.7(8) Art.9(2)(b), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Councillor Thomas Cullen and the Department of Environment, Community and Local Government

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0018

Published on 10 November 2016

1. Background
2. Scope of review
3. Analysis and findings
4. Decision
5. Appeal to the High Court

Background

On 6 December 2004, Wicklow County Council served a Compulsory Purchase Order on the owner and on the occupier of land at Three Trouts, Charlesland, Greystones, County Wicklow. The purpose of the CPO was to acquire the land for social housing. A Notice to Treat in respect of the CPO issued in July 2006, requiring the parties involved to provide details of compensation sought. In March 2011, the parties to the CPO agreed a compensation sum of three million euro.

Wicklow County Council made a number of applications to the Department to finance the Charlesland development. Concerns were raised by a number of elected representatives, including the appellant, on aspects of the development. In January 2012, a senior counsel, Seamus Woulfe SC, was appointed to carry out a review of the issues raised. This independent review was carried out in two stages: the first stage examined the involvement of the Department, and the second dealt with the actions of the Council. Mr Woulfe produced two reports of 12 March 2012 and 8 February 2013, which were subsequently published by the Department.

On 1 September 2014, current and former members of Wicklow County Council, including the appellant, submitted a file to the Minister for the Environment, Community and Local Government, relating to the findings of the Woulfe reports, and other matters concerning Wicklow County Council. This file was misplaced within the Department. The Minister's private secretary contacted the councillors to notify them of the loss. A replacement file was submitted to the Department by the councillors on 29 September 2014. The Department subsequently found the original file.

On 22 February 2015 the appellant made a request under the AIE Regulations to the Department. The request contained four numbered sections. On 10 March 2015, the Department notified the appellant that his request would be processed in two separate parts (this appeal relates to the first and second parts only).

The parts of the appellant's request which are the subject of this appeal are as follows:

1. All information relating to the file submitted to the Minister for Environment, Community and Local Government Mr Alan Kelly T.D by Mr Barry Nevin on the 1st Sept 2014. All information including minutes of meetings, dates of meetings, emails both external and internal, letters, memos, records of phone or other conversations, reports of inquiries, all such information that is in your possession or procurement associated with the documents personally handed into your Department by Mr Nevin and later disappeared from the Minister's office and was the subject of an internal inquiry. All documents associated with the inquiry into the file's disappearance within the Department.

2. All information relating to documentation submitted to your department by [a named third party]. All letters sent and received, E mails external & internal, all memos, minutes and dates meeting, all records and notes of phone conversations and all such information that is in your possession relating to [the named third party's] correspondence with your Minister and Department."

On 23 March 2015, the Department's decision maker wrote to the appellant and stated "...I consider that your request, as currently worded, does not contain sufficient particulars to enable the records sought to be identified. It may be refused on this basis, as permitted under Article 9(2)(b) of the AIE Regulations. I would like to invite you to make a more specific request in relation to the information you seek, such as the subject matter of the documents concerned and/or the dates between which the documents of interest would have been submitted"

The appellant replied to the decision maker by email on 2 April 2015, stating "I have given consideration to your letter dated March 23rd and it is my view that I have been quite specific in my request to you and the information that I have requested is contained therein those specifications as outlined in my request. The Information I am seeking all relate to environmental issues relating to a Flood Plain and the proposed building of a development on the said Flood Plain....The documents removed from the Minister's office and the investigation that followed, also the subject of my F.O.I request dealt with the issue of the Flood Plains as referred to above at the "Three Trout Stream".

In a decision of 16 April 2015, the Department refused the appellant's request for environmental information. The Department stated that information on the temporary loss of the file did not fall within the definition of "environmental information" contained in the AIE Regulations. With regard to the appellant's request for information submitted by the third party, the Department stated "as outlined in my previous letter, where a request has been formulated in too general a manner, a public authority may request that the applicant specify further details on the information sought. This is to enable the public authority to identify the records through reasonable steps. I regret that the second point of your request, as currently worded, is too general and does not contain sufficient particulars. While [parts 3 and 4 of his request dealt with by the Department in a separate decision] refer to specific matters (lands at Three Trout Stream, Charlesland, etc), these matters are not referenced in the second point of your request. It would be presumptive of me to conclude that the documentation...that is of interest to you concerns these same matters in the absence of clarification from the requestor." In this decision, the Department renewed its invitation to the appellant to make a more specific request.

The appellant made a request for an internal review of this decision. In making his request, the appellant indicated his dissatisfaction with the first instance decision, but did not take up the Department's second invitation to make a more specific request.

In an internal review decision of 15 May 2015, the Department affirmed its decision of 15 April. The Department included in the internal review decision an alternative ground for refusal of the second part of the request, stating that the matters referred to were the subject of an ongoing deliberative process which would be adversely affected by disclosure of information.

Scope of review

Under article 12(5) of the AIE Regulations, my role is to review the internal review decision of the public authority and to affirm, vary or annul it. My Office contacted both parties on 7 July 2015, and invited their submissions on the appeal.

Directive 2003/4/EC (the Directive) implements the first pillar of the 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"). The Directive is transposed into Irish law by the AIE Regulations. In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance]; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

The appellant's position

The appellant submitted that his request dealt directly with environmental issues with regard to a proposal by Wicklow County Council to build houses on land that the appellant characterised as a "flood plain".

With regard to part 1 of his request, the appellant submitted that the file addressed environmental issues, and that as a result, he had a right to access to information with regard to the disappearance of the file from the Minister's office, and any subsequent investigation that followed its disappearance.

With regard to the second part of his request, the appellant submitted that the correspondence...