Groundwork and the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs

• Case Number: CEI/15/0024
• Decision Date: 20 December 2016
• Issuer: Arts, Heritage, Regional, Rural and Gaeltacht Affairs
• Applied Rules: Art.9(1)(b), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Groundwork and the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0024

Published on 20 December 2016

1. Background
2. The AIE Request
3. Scope of Review
4. Conclusion
5. Decision
6. Appeal to the High Court

Background

The appellants are members of an environmental non-governmental organisation called Groundwork. Groundwork is involved in habitat conservation, and its website says that "most of Groundwork's focus has been on the removal of the invasive plant Rhododendron ponticum from Killarney National Park, Co. Kerry".

Killarney National Park (the Park) is managed by the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs. The National Parks and Wildlife Service (NPWS) is the section of the Department which conducts the day-to-day management of the Park on behalf of the Minister.

In September 2014, the appellants submitted an AIE request to the Department, requesting information related to the control of Rhododendron at the Park. The Department assigned the reference 'AHG/AIE/2014/33' to this request.

Later that same year, Groundwork Conservation Volunteers (which is another name that the appellants use to describe their organisation) lodged a formal complaint with the European Commission (the Commission). The complaint alleged that Ireland was failing to comply with article 6(1)(2) of the Habitats Directive, by allowing oakwood habitat to deteriorate due to the spread of Rhododendron.

The AIE Request

On 8 June 2015, the appellants submitted another AIE request to the Department, this time seeking the following information:

"All relevant information (not already released under request AHG/AIE/2014/33) regarding Rhododendron control and/or eradication in Killarney National Park in the period 1995 to June 2015 (inclusive) and to include information of relevance to future rhododendron control and/or eradication."

The appellants added that this "request should be read in conjunction with the attached documents". Attached was a letter, also dated 8 June 2015, from the appellants to the Department. It referred to the earlier AIE request, acknowledged the receipt of 256 documents in response to that request, and claimed that there was a large number of documents which had not been mentioned by the Department. The letter went on to identify examples of documents which it believed the Department held.

The Department responded on 3 July 2015 and provided access to approximately 300 additional records. The Department's decision-maker wrote that he did not believe that he could provide:

1. Records relating to correspondence with the Commission.

2. Records relating to 3rd parties or containing personal information.

3. Records of a commercial nature.

He pointed to where the appellants might obtain further information and offered to provide access to certain raw data, if required. The Department did not charge for any of the information provided.

On 31 July 2015, the appellants requested an internal review of the decision, saying that there was "still a large number of documents missing", and they listed 44 outstanding items.

On 28 August 2015, the Department gave notice of its internal review decision. It varied the original decision by providing access to some information which had been redacted by the original decision-maker, provided redacted access to one additional document, and provided access to "copies of Ministerial correspondence with respect to Rhododendron". The decision-maker said that a fresh search had not identified any other documents. Otherwise, this decision affirmed the original decision. Notably, the internal review did not consider the status of records relating to correspondence with the Commission, because the decision-maker understood that the appellants had agreed to exclude such information from the scope of the review.

Dissatisfied, and believing there was a large amount of material that the Department was unwilling to release, the appellants appealed to my Office on 25 September 2015.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is: to review the Department's internal review decision; to affirm, annul or vary it; and (if appropriate) to require the Department to make environmental information available to the appellant.

The appellants assured my Office that they have no interest in obtaining commercial or personal information, and said that they told the Department this before the original decision was made. They said that they understand and accept the redaction of such information, but wanted my Office to check that those redactions (which were said to apply only to personal or commercial information) had not been applied to any other type of information. The appellants therefore voluntarily (and commendably) narrowed the scope of their request so that efforts could be focussed on the information in which they are interested.

In conducting my review I took account of the submissions made by the appellants and the Department. 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 Aarhus Guide).

The appellants' position

The appellants submitted that "there is much more information that has not been shared or actually searched for". They provided my investigator with a list of 44 items of information within the scope of their request which they expected to be held by the Department.

For example, they pointed out that (in their words):

1. In June 2014 Minister Deenihan announced "I have allocated a further €100,000 for the management of this plant" (i.e. Rhododendron). Information relating to how this additional €100,000 was spent tackling Rhododendron is missing.

2. No records of communication between Minister Humpreys or her office and NPWS were provided.

3. No records were provided from a certain previous Regional Manager who had responsibility for Killarney National Park, and only one record from another holder of that post was provided.

4. Just one record of communication between Voluntary Service International (VSI) and Killarney NPWS staff was released, despite these (i.e. VSI) being mentioned in numerous statements and press releases. No records of communications between the Killarney Nature Conservation Group and NPWS were released.

5. No habitat surveillance reports for the Killarney Oakwoods were released.

6. One record (number 278) released by the Department contained a statement made by a senior official of the Department saying that he had been unable, due to a lack of staff resources, to check for any relevant records on the electronic or paper files of a recently retired scientific officer (a woodlands specialist).

7. Record number 56 (which had been released in part-redacted form) was not redacted for the reason given by the Department. (The appellants described this as "a crude attempt to hide information which called into question how other redactions could be trusted to have been made for the reasons given".)

The Department's position

Information provided to the appellants

The Department said that it carried out extensive trawls to identify all relevant records and that, in response to an earlier request, this request, and a later request, taken as a whole, it has provided the appellants with over 600 records. It said that the overwhelming majority of these records were released in full.

In relation to record number 56, the Department said that the part-redacted version which it had given to the appellants had been given in error when it had been accidentally conflated with another record. The Department said that it had apologised to the appellants for this error and provided them with an unredacted copy.

With regard to the reference to a 'Rhododendron Status Report/Strategic Plan' in record number 129, the Department told my investigator that this relates to two reports (a 'Strategy for Rhododendron Control in Killarney National Park' and 'Site management - Killarney National Park Rhododendron Control strategy'). It said that both of these documents were provided to the appellants in response to the previous AIE request and the appellants were told this in the internal review response to the current request.

Information refused because it is outside the scope of the request

The Department provided the appellants with a heavily redacted copy of record number 232. It said that this document was prepared as a briefing for a new minister on all of the activities of the NPWS. It said that, since the redacted material does not relate to Rhododendron, it is therefore outside the scope of the AIE request. It said that the section within the report which is pertinent to the request was released in full.

The Department submitted that, while the appellants pointed to a lack of correspondence with other volunteer groups amongst the released records, any withheld records meeting this description were deemed to be outside of the scope of the request since they do not deal with Rhododendron control.

The Department submitted that the appellants had agreed that information...