James Cullen and Raidió Teilifís Éireann (RTÉ)

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0011
• Decision Date: 24 April 2017
• Issuer: RTÉ
• Applied Rules: Art.9(2)(a), European Communities (Access to Information on the Environment) Regulations, 2007

James Cullen and Raidió Teilifís Éireann (RTÉ)

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0011

Published on 24 April 2017

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

Background

On 7 December 2015, RTÉ broadcast an episode of the "RTÉ Investigates" programme entitled "Standards in Public Office". On or about 17 December 2015, the appellant posted a letter to RTÉ requesting access to environmental information under the AIE Regulations. The appellant's request was for access to "all information in relation to the RTÉ program "RTÉ Investigates Standards in Public Office" screened by RTÉ on 7 Dec 2015, held by or in possession of RTÉ whether broadcast or not, including but not limited to copies of all notes, memoranda, minutes of meetings, names of all persons involved in it and how much they were paid, all footage, etc."

On 20 January 2016, the Head of Statutory Compliance with RTÉ wrote to the appellant, stating that the request had been received on 7 January 2016. RTÉ stated that the content matter of the request did not relate to environment, and asked the appellant if he wished to reconstitute the request as a Freedom of Information request. In an email of 26 January 2016, the appellant requested an internal review of RTÉ's decision to refuse his request.

RTÉ replied to the appellant's internal review request in a letter of 19 February 2016. This letter stated that RTÉ had considered the type of information requested by the appellant, and said that some of this information (such as planning information and information on ownership of land) may be publicly available as a matter of law (and therefore outside the remit of the AIE Regulations). RTÉ characterised the appellant's request as "broad", and stated that RTÉ was "minded to refuse" the request on the basis that it was manifestly unreasonable with regard to volume and range, and also on the ground that the request was formulated in too general a manner. RTÉ invited the appellant to make a more specific request, and cited article 7(8) of the AIE Regulations in this regard. This letter concluded the correspondence between the parties: the appellant did not respond to the invitation to make a more specific request, and RTÉ did not subsequently notify the appellant of an internal review decision. The appellant appealed the refusal of his request to my Office on 16 March 2016.

Scope of review

Article 11 of the AIE Regulations provides that, where a public authority refuses a request, the applicant may ask the public authority to review that decision. Articles 10(7) and 12(4)(a)(ii) of the AIE Regulations provide that where no decision on a request (or on internal review) is notified to an applicant within the time specified, the request is deemed to have been refused, giving rise to a right of appeal to my Office. In the course of my review on this appeal, I have considered whether the appellant's request for an internal review was prematurely made, bearing in mind RTÉ's response and the time periods set out in the AIE Regulations. I have also considered the application of article 9(2)(a). This article provides for refusal of requests which are manifestly unreasonable with regard to volume or range. In circumstances where no formal decision was made by RTÉ at internal review stage, my Investigator wrote to the parties and invited their submissions on this ground for refusal.

The AIE Regulations transpose Directive 2003/4/EC into Irish law. This 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). 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].

RTÉ's submissions

RTÉ stated that the Appellant's AIE Request was received by its Group Secretary on 7 January 2016. RTÉ contended that the appellant's request for an internal review was premature. RTÉ accepted that it did not issue a formal decision within the time allowed by the AIE Regulations (one month in this case); however; it contended that it was not in a position to refuse the appellant's request as he had not replied to the letter of 20 January 2016.

RTÉ stated that it consulted the RTÉ Investigations Unit to ascertain the extent of information captured by the request. RTÉ's Investigations Unit stated that thousands of documents are captured by the request. With regard to the public interest in disclosure, RTÉ characterised this interest as being of reduced weight in circumstances where much of the information it relied on in its investigation is in the public domain. RTÉ submitted that article 9(2)(a) was intended to ensure the proper application of resources of public authorities. RTÉ submitted that the interests served by disclosure did not outweigh the negative impact that processing the request would have on its resources.

The appellant's submissions

The appellant stated that he could not recall the date his request was posted. He contended that his AIE request was not too general, and submitted that much of the information he requested is likely to be held in electronic format, and would therefore be easily accessible.

The appellant submitted that the public interest in disclosure of information on the television programme outweighed the interest served by refusal, on the basis that RTÉ did not receive any information from confidential sources in connection with the programme in question. The appellant stated that the investigation was...