Mr. John Colgan and Kildare County Council

• Case Number: CEI/08/0006
• Decision Date: 15 March 2010
• Issuer: Kildare County Council
• Applied Rules: Art.7(5) Art.8(a)(iv) Art.9(1)(c), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. John Colgan and Kildare County Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/08/0006

Published on 15 March 2010

Appeal to the Commissioner for Environmental Information

Case CEI/08/0006

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Mr. John Colgan

Public Authority: Kildare County Council (the Council)

Whether the Council was justified in its refusal of access to environmental information concerning the installation of a sewer across the River Liffey at Leixlip

Summary of Commissioner's Decision

The Commissioner found that the Council was not justified in its original decision to refuse the request on the basis that it did not hold any environmental information within the scope of the request.

She found that section 7(5) of the Regulations allowed the Council to refuse a request in relation to further records (other than those made available in the course of the review) on the basis that the information requested is not held by or for it. She found that for the purposes of this particular request and appeal, the contractors engaged in the project at issue were not ''public authorities'' within the meaning of the Directive and the Regulations.

In relation to the small number of outstanding items of information, she found that the Council's decision to refuse access under Article 8(a)(iv) and Article 9(1)(c) of the Regulations on grounds that disclosure would adversely affect confidentiality was not justified in the circumstances of this case and she directed the release of that information insofar as it lay within the scope of the request.

Background

On 21 January 2008, the Applicant made a request for environmental information to the Council under the Regulations, seeking "a copy of the "paper trail" of this project"- the project being "the installation of a sewer from and for the Salmon Leap Inn, Cooldrinagh, Co. Dublin, across the Liffey (aka Salmon Leap) Bridge...., and thence connecting to a main sewer the property of your Council at Main St or Mill Lane Leixlip".

In its decision of 19 February 2008, the Council refused the request stating that the installation of the sewer was a private agreement about which the Council held no information. The Applicant, on 17 March 2008, sought an internal review of the Council's decision. When there was no reply within the required timeframe of one month, he appealed to my Office on 29 April 2009. The appeal was accepted and the Council was asked to review the matter and indicate its position. The Council released to the Applicant on or about 30 June 2008 a number of records identified as relevant to the request.

When the appeal was accepted, my Office sought information from the Council to enable it to proceed with the review. Despite reminders, the request to the Council was not responded to in an adequate manner and it was necessary on 20 October 2008 to issue a letter to the County Manager under Article 12(6) of the Regulations formally requiring the provision of the information. In response, the Council indicated that all the information in its possession relating to the Leixlip Bridge project would be made available to the Applicant although, in its view, the material relating specifically to the sewer was limited. The Council's view was that this access be by way of inspection given the large volume of material relating to the overall project for the refurbishment of Leixlip Bridge. The Council suggested that there were approximately 53 files. After further communication between my Office and the applicant, the Applicant agreed to inspect the files and did so in January 2009. The Council asked two contractors who had worked on the project to provide any relevant information held.

In the information identified as relating to the overall project, there were a few items which the Council considered exempt from release under the Regulations.

I have taken account of the submissions of the Applicant (written and oral) and the Council and of the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive). What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.

My Investigator, Ms Brenda Lynch, sent her preliminary views to the parties in May 2009. A detailed response was submitted by the applicant in late July 2009; no response was received from the Council. I have decided to bring this appeal to a conclusion by way of a formal binding decision. I wish to point out that this was a particularly protracted review, due in part to the inadequate responses of the Council in the early stages and the comprehensive input of the applicant. Despite this, I think it important to point out that, following the intervention of my Office, the applicant obtained access to a large volume of information, including much that was outside the scope of his original request.

Scope of Review

This review is concerned solely with whether the Council's decision was justified under the Regulations. The Regulations set out the circumstances in which an appeal may be made to the Commissioner. Under Article 12(3), an appeal may be made against a decision of a public authority under Article 11 i.e. against an internal review decision. In turn, a request for an internal review under Article 11 must relate to a request which has been refused under Article 7 which provides for the action to be taken on a request for environmental information. Article 12(4)(a)(ii) provides for an appeal to be made to the Commissioner when no decision has issued from the public authority in the required timeframe, as happened in this case. It is important that in exercising my role, I do not to exceed my jurisdiction and, for this reason, establishing the scope of a review is vital.

The following points are relevant regarding the scope of this review:

• it is limited to that of the original request, i.e. relating to the installation of a sewer at the Salmon Leap Bridge. The applicant, in a letter to the Council , said that by "project" he did "not mean the entire bridge works but rather those aspects of the bridge works which address the installation and after effects of the private drain/sewer";
• information which has been released by the Council is outside the scope of the review. The Council gave the Applicant the opportunity to inspect a considerable number of files and take copies of material if he wished. The applicant spent considerable time examining a large volume of records, not all of which were strictly within the scope of his request. Those records are considered to have been released by the Council;
• the review is limited to records created prior to the original request i.e. 21 January 2008.

I wish to emphasise that it is outside my remit as Commissioner for Environmental Information to adjudicate on how public authorities carry out their functions generally. This means that my Office does not have the authority to investigate complaints against public authorities or to provide an alternative dispute mechanism with respect to actions taken by public authorities.

Analysis and Findings

Before I examine the exceptions cited in relation to the withheld records, I wish to make some observations on the circumstances of this appeal.

Handling of original request

I find it difficult to see how the Council in response to the original request could take the position that it held no environmental information relevant to the request. The definition of "environmental information" set out in Article 3(1) of the Regulations is extensive.

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 interactionamong these elements...

(f) the state of human health and safety, including the contamination ofthe food chain, where relevant, conditions of human life, cultural sitesand built structures inasmuch as they are, or may be, affected by thestate of the elements of the environment referred to in paragraph

(a) or, through those elements, by any of the matters referred to inparagraphs (b) and (c);

I am satisfied that information relating to the installation of the sewer at the bridge is "environmental information". In view of the information subsequently identified as relevant to the request, it is fair to say that the Council should have dealt with the original request in a proper manner. Following intervention by my Office, the Council decided to make available all information in its possession relating to the Salmon Leap Bridge project, with some limited exceptions. While this approach on the part of the Council was helpful in progressing matters, it also meant that there was a considerable volume of information to be examined and that not all the information made available for inspection (53 files) was strictly within the scope of the request. It is important that public authorities in dealing with requests for environmental information are mindful of the need to be of assistance to requesters.

Legal Provisions

Article 7(5) of the Regulations provides:

"Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall informthe applicant as soon as possible...