Mr Donal O'Brolchain and Dublin City Council

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0027
• Decision Date: 29 August 2017
• Issuer: Dublin City Council
• Applied Rules: Art.7(3), European Communities (Access to Information on the Environment) Regulations, 2007

Mr Donal O'Brolchain and Dublin City Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0027

Published on 29 August 2017

1. Background
2. Scope of review
3. Analysis and findings
4. Decision
5. Appeal to the High Court
6. Schedule of traffic counts to be provided to the appellant

Background

On 12 May 2016, the appellant made a request to the Council for access to traffic counts at 11 locations in Dublin, carried out in the years 2000, 2005, 2010 and 2015. The appellant requested access to this information in Annual Average Daily Traffic (AADT) format, with a breakdown of vehicle types. The appellant also requested information on the methodology of traffic counts carried out.

The Council did not make a decision on the request within one month, and so the request was deemed to be refused pursuant to article 10(7) of the AIE Regulations. The appellant sought an internal review of this deemed refusal on 21 June 2016.

In an internal review decision of 11 July 2016, the Council provided the appellant with access to one traffic count from 2005, relating to Malahide Road and Donnycarney Road in Dublin. The Council stated that, although a considerable number of searches were conducted to identify relevant information on traffic counts, only one traffic count was identified which met the appellant's request. On 8 August 2016, Mr O'Brolchain appealed to my Office against the Council's decision.

Scope of review

Under article 12(5) of the AIE Regulations, my role is to review the Council's internal review decision and to affirm, annul or vary it. In this instance, I am concerned with the question of whether the Council was justified in its decision that all relevant information had been disclosed to the appellant at internal review stage. In circumstances where a public authority grants access to certain information and contends that no further information is held, my practice is to review the adequacy of searches carried out by the public authority.

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].

The Appellant's Position

The appellant submitted that he intentionally sought data from locations which were previously recorded as part of the Environmental Impact Statement for the Dublin Port tunnel. The appellant believed that the Council would have additional traffic counts for these locations.

The Council's Position

The Council submitted that numerous searches were carried out for information requested by the appellant. The Council explained that it carries out annual traffic counts at the canals each November, but does not conduct routine traffic counts at the locations referred to by the appellant. In a submission to my Office on appeal, the Council identified 32 additional traffic counts it holds, and offered to provide these to the appellant on request. The Council contended that no other relevant information on traffic counts is held by or for it.

The Council submitted that it does not record traffic data in AADT format, and so it released data to the appellant in the original format.

Analysis and findings

The information held by or for the Council

I accept the Council's submission that it does not conduct annual traffic counts at the locations requested. Notwithstanding this, it appears that the Council holds one-off traffic counts for the locations and years referred to in the appellant's request. One traffic count was provided to the appellant at internal review stage. The Council's internal review decision stated "only one set of records was identified which is relevant to your request". In its subsequent submission to my Office, the Council identified 32 traffic counts which it holds. My Investigator compared the traffic counts requested by the appellant with...