Donal O'Brolchain and Dublin City Council

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0028
• Decision Date: 13 April 2017
• Issuer: Dublin City Council
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007

Donal O'Brolchain and Dublin City Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0028

Published on 13 April 2017

1. Background
2. Scope of Review
3. Decision
4. Comment
5. Appeal to the High Court

Background

The AIE Request

On 12 May 2016 the appellant submitted an AIE request to the Council saying the following:

“Given the impact of traffic noise and traffic emissions on human health I seek, under the European Communities (Access to Information on the Environment) Regulations 2007 to 2014, a list of all reports/studies (including draft report/studies) covering transport within the area of North Dublin City from Cabra/Navan Roads to Howth Road and inside the M50, done since July 1998 with the following details for each report/study

• Title e.g. Dublin Port Tunnel Environmental Impact Statement.
• Who commissioned the report: e.g. Dublin Corporation.
• Date of completion: e.g. July 1998.
• Who compiled the Report: e.g. Dublin Corporation, Geoconsult Arup Joint Venture.
• How many volumes in the report/study (including appendices to draft report/studies) e.g. 5 volumes”.

On 1 June 2016, the Council gave notice of its decision to refuse the request, as follows:

“This request would require the retrieval and examination of such a volume of records as to cause substantial and unreasonable disruption of work in this department [i.e. the Council’s Environment and Transportation Department], particularly at a time when there is considerable pressure on scarce resources. Also, much of the material sought has already been and is or was in the public domain. Much of the material i.e. Environmental Impact Statements in relation to LUAS, Metro North etc. fall within the remit of other bodies. Consequently I have no option but to refuse your request in its present format”.

The decision-maker went to say:

“As no actual list of the requested reports/studies exists, that we are aware of, it would be helpful if you could reformulate the request and clarify some issues e.g.

• Are you seeking information specific to the particular area outlined only or relating to Dublin transport in general, which would obviously include the outlined area?
• Does the request refer only to specifically commissioned reports and studies?
• Does the requested information include reports which may have formed part of the City Development Plan, Corporate Plans etc., in which case your request must be sent to other departments.

I would be obliged if you could contact me again to further discuss your requirements and we shall endeavour to assist you in reformulating your request.”

The decision-maker also notified the appellant of his right to seek an internal review of the refusal decision.

The appellant spoke by telephone with the decision-maker on 3 June 2016 and discussed his requirements. The decision-maker suggested that the appellant might send an email “to clarify matters” and said that this email would be forwarded to the Council’s Head of Technical Services, in case he might be able to help. (The decision-maker later told my Office that “the subject matter of the request is such that no other person currently employed in this department has adequate knowledge in this area, particularly as some of the surveys being requested would be up to 18 years old and there is no evidence that any such surveys were carried out”.)

The appellant followed this conversation with an email to the Council, providing further information of what he was seeking. He explained that he was puzzled by the emphasis on Fingal/Swords/Airport in a National Transport Authority draft study dated April 2002 and entitled Study of Transport Corridors for Fingal Corridors in advance of Metro North. He explained that he was trying to discover “if equivalent studies had been done for other more densely populated areas e.g. Drumcondra, Santry and Coolock”. He did not reformulate his request.

On 21 June 2016 the appellant wrote to the Council saying:

“Further to my letter of 12 May last, the Dublin City Council refusal dated 1 June 2016, and my email of 3rd June 2016 … I appeal this refusal ….

The Council acknowledged receipt of the request for internal review, named the official who would be dealing with it and said that a decision would be due not later than 22 July 2016.

I understand that the Council’s Head of Technical Services contacted the appellant by telephone on 1 July 2016 and later told colleagues that this conversation gave him a better understanding of the appellant’s requirements.

On 11 July 2016 the nominated internal-review decision-maker wrote to the appellant. He noted that the appellant had further contact with the original decision maker “following the refusal decision” and with the Head of Technical Services. He expressed his regret at the delay in the case and included a paragraph setting out how the appellant could appeal “this decision” to my Office. He also said that he hoped that the matter would be concluded to the appellant’s satisfaction as soon as possible after 25 July 2016.

The Council wrote again to the appellant on 27 July 2016 and informed him that the Head of Technical Services had not been able to find any information or evidence of further reports or surveys relevant to the request, other than those which the appellant was already aware of.

Dissatisfied with this, the appellant appealed to my Office.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is firstly to review the Council’s internal review decision 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 decision under review

The appellant took the Council’s letter on 11 July 2016 as its internal-review decision: It was signed by the person who the Council told him would be conducting the internal review; it was delivered within the decision-notification timeframe set out in the AIE Regulations; and it notified the appellant of his right to appeal “this decision”.

The Council later told my investigator that its letters of 11 July 2016 and 27 July 2016 were both in response to the request for internal review. However, the letter dated 27 July 2016 was outside of the time allowed by the AIE Regulations for a response to a request for an internal review and for that reason could not constitute a valid notification of a review decision. For this reason I am satisfied that the Council’s letter dated 11 July 2016 contains the decision...