John Tierney and Dún Laoghaire-Rathdown County Council

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0029
• Decision Date: 16 March 2017
• Issuer: Dun Laoghaire - Rathdown County Council
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007

John Tierney and Dún Laoghaire-Rathdown County Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0029

Published on 16 March 2017

Background

The AIE Request

The appellant submitted an AIE request to the Council on 1 June 2016, seeking the following information:

"Copies of all records held by the County Council relating to the ownership of Balure Lane, Church Road, Killiney. A section of this laneway was acquired under a CPO [compulsory purchase order] in 1985 by the County Council for road-widening".

The Council received the request on 3 June 2016 and replied by letter on the same day, saying that "the request was for access to certain Infrastructure & Climate Change Department records held by the County Council". The letter said the request had "been deemed more appropriate as a request under the Freedom of Information (FOI) Act, 2014" and it named the officer who would be dealing with it.

The appellant replied by letter dated 7 June 2016 pointing out that his request was an AIE request, and he asked for it to be dealt with accordingly.

On 1 July 2016 the Council responded in a letter which said that it had deemed the AIE request to be outside of the scope of the AIE "Act", and referred the appellant to a copy of article 3(1)(a) of the AIE Regulations which set out the definition of environmental information. It went on to say that it had refused his request under the FOI Act under section 37(1) of that Act. I regard this letter as notification of the Council's decision to refuse the AIE request. The letter was accompanied by a document entitled "Freedom of Information Schedule of Records". However, the purported schedule was nothing of the sort: it did not list records, or give any indication of what records were held, or how many pages they contained.

On 6 July 2016, the appellant delivered a request for an internal review of the decision to refuse his AIE request to the Council and asked it to note that he had not made an FOI request.

On 19 July 2016 the appellant sent a submission to the Council, for consideration by the internal-reviewer. He says that he received no acknowledgement of receipt of this submission. In it, he explained why he believed that the information which he requested is environmental information. He also quoted from the Minister's Guidance, and he invited the Council to advise him if it felt that his request was too general and if a different form of wording would be more appropriate.

On 26 July 2016 he again wrote to the Council, asking for confirmation that his request for internal review had been received in time and also saying that he had not received any acknowledgment of receipt of his submission. He told my Office that he did not receive an acknowledgment of receipt of this letter either.

The Council did not notify the appellant of an internal review decision within the time required by the AIE Regulations. Accordingly, the appellant acquired a right of appeal to my Office one month after the Council received the request for internal review, which (according to the Council's own account) was 8 July 2016. The appellant initiated an appeal on 10 August 2016.

On 12 August 2016, the Council wrote to the appellant saying that an internal-review had upheld the original refusal of the AIE request because the records sought were outside of the scope of the AIE Regulations. The decision-maker also informed the appellant that "records of land ownership reside with the Land Registry/Registry of Deeds" and provided contact details for same. She also informed the appellant that a schedule of roads "taken in charge" (but not owned) by the Council could be viewed in the Council's Office. She did not say, however, how such information might be relevant to the request.

The appellant appealed this decision to my Office on the same date.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is firstly to review the Council's 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).

Relevant AIE provisions

Article 3(1) provides that "environmental information" means any information in written, visual, aural, electronic or any other material form on:

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);

The decision under review

The Council's decision of 12 August 2016 was notified too late to be valid. However, it set out the Council's reason for refusal, in that it purported to uphold the original refusal of the AIE request because the records sought were outside of the scope of the AIE Regulations.

In a submission to my Office, the Council said that the request "was in regard to land ownership/title and not a request for environmental records". The Council explained that it had then treated the request as an FOI request "so as to keep the request alive" rather than refuse it out of hand.

My investigator asked the Council for copies of the relevant records and was given 6 records, along with a fresh schedule which listed the individual records. The Council had released two of the records to the appellant. The Council confirmed that its decision-maker had examined the contents of the other four records and formed the view that they did not contain environmental information.

The Council did not put forward any argument based on articles of the AIE Regulations as to why I should not require it to provide the appellant with access to any information within the withheld records that I find to be environmental information (if any). However, I note that it expressed concerns about the disclosure of personal information when it considered the request under the FOI legislation.

The appellant's position on the Council's decision

In a submission to my Office, the appellant cited the...