Mr MK and the Environmental Protection Agency

• Case Number: CEI/13/0002
• Decision Date: 01 October 2015
• Issuer: Environmental Protection Agency
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr MK and the Environmental Protection Agency

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/13/0002

Published on 1 October 2015

1. Background
2. Scope of Review
3. Preliminary Matters
4. Analysis and Findings
5. Decision
6. Appeal to the High Court

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2014 (the Regulations)

Appellant: Mr. MK

Public Authority: Environmental Protection Agency (EPA)

Issue: Whether the EPA was justified in its decision on the appellant's request for information. The decision was to release information relating to the investigations of his complaint about roadworks carried out near his home.

Summary of Commissioner's Decision: In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the EPA. He varied the decision of the EPA and found that the EPA has taken has taken all reasonable steps to provide the appellant with the information sought and that Article 7(5) applies to any further information which, in the appellant's view, should be made available to him.

Background

On 7 December 2012, the appellant made a request to the EPA, in an email in which he forwarded an email request which had been sent to another public authority, for information relating to road works which had been carried out near his home, to include various reports, data, internal and external communications, and photographs. No decision was made on this request and the appellant sought an internal review on 18 January 2013. The EPA issued its decision on 13 February 2013, in which it identified and granted access to 144 records identified as relevant to the request. I note that there was further correspondence between the appellant and the EPA, in which a number of queries raised by the appellant about the decision of 13 February 2013 were addressed, and further information provided. As the applicant was not satisfied with the position at this stage, he appealed to my Office. In his appeal which was submitted in two parts, he identified six "factors of refusal to supply" which he was appealing, as follows:

• "absence within the 3rd report/CD data set supplied because EPA commissioned Report /3 (AWN) if such data, because no such measuring was undertaken
• absence of supply of such software, and inability through the means of the applicant procurement recommended in substitution for supply
• absence of full internal (and when external) EPA administrative measure-relating communications
• absence of entire list of expenditures
• absence of EPA officer photography
• absence of attendee annotations (AWN)"

He also included two other items in his appeal:

7. "The 2nd reports further fanciful and unscientific, so arbitrary claims as to "averages", and corrupted week during the first human perception survey is required.

8. Additional statements to requesting of 07/12/2012, and Part 1 of this appeal."

Following notification by my Office of the appeal, the EPA accepted that photos and videos (Item 5) had been omitted from its original response. These have since been released to the appellant. The appellant appears to have raised issues with what photographs were taken and with the investigation to which they relate. These matters are not within my remit as Commissioner to adjudicate upon. I have not been able to identify any claim on his part that additional photographs exist which have not been released to him.

I regret the delay that arose in dealing with this appeal, which was due both to resource issues in my Office and to the volume and nature of the applicant's submissions.

I have decided to bring this appeal to a conclusion now by way of a formal, binding decision. In so doing, I have had regard to the submissions of the appellant, in so far as they were relevant, and those of the public authority, and to the provisions of the Regulations. I have also had regard to the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations[the Minister's Guidance]; Directive 2003/4/EC [the Directive], upon which the AIE Regulations are based; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention.

Scope of Review

Under Article 12 of the Regulations, I must review the decision of the EPA and affirm, vary or annul it. The question before me is whether the decision of the EPA was justified. As the EPA has released information relevant to Item 5 above, this is no longer in scope of this appeal.

Preliminary Matters

Original Request

Article 6(1) provides as follows:

6. (1) A request for environmental information shall --

(a) be made in writing or electronic form,

(b) state that the request is made under these Regulations,

(c) state the name, address and any other relevant contact details of the applicant,

(d) state, in terms that are as specific as possible, the environmental information that is the subject of the request, and

(e) if the applicant desires access to environmental information in a particular form or manner, specify the form or manner of access desired.

The original request of 7 December 2012 was contained in an eight page email which was forwarded to the EPA, having been originally sent to another public authority. The email was not sent to the EPA's designated AIE liaison officer and it was not clear from the manner in which the email was sent that it was a request for access to environmental information under the Regulations. It was only on receipt of the internal review request that the EPA were in a position to identify the original request as such, and it then proceeded to process the request in accordance with the Regulations. While there are no specific requirements as to how a request should be presented, it is not helpful to have the request so intertwined with commentary, analysis and background information to the extent that the specific information sought is not readily identifiable. In this case, it is arguable that the original request did not comply with the requirements of Article 6(1), in particular, subsection (d) of that provision as set out above. However, the EPA accepted that it was a request under the Regulations and processed it as such, and therefore, I have accepted the appeal on this basis. I should say that, having completed my review of the EPA decision, that it is my view that it went to great lengths to respond to the applicant's request. It is clear from the material made available to my Office that the request followed on from an investigation carried out by the EPA into complaints from the appellant of vibration and noise pollution, about which there has been considerable engagement with the appellant on the part of the EPA and another public authority.

It seems to me that applicants who wish to have access to environmental information and have their requests dealt with in a timely and efficient manner would be well advised to contact the designated officer with responsibility for AIE in the first instance. Member States are required by the Directive to make practical arrangements (including the designation of information officers) for the effective exercise of the right to environmental information.

Appellant's submissions

The appellant was invited by my Office, in accordance with normal practice, to make submissions which would be taken into account in dealing with the appeal. Since this appeal was accepted, he sent more than forty emails to my Office in response to the invitation to make submissions, in addition to numerous other emails relating to this appeal prior to it being accepted and other matters on which he has corresponded with my Office. This level of correspondence was, having regard to my knowledge and experience, and by objective standards, extensive and what might be termed obsessive in nature. Some of the emails raise issues about the technical analysis in some of the documents he received in response to his request and provide extensive commentary on the content of records received. Others relate to issues raised previously which he was advised were not within my remit as Commissioner. Many of these emails are very long (11 over 20 pages long, one of which contains 189 pages), and it is difficult to decipher what points are being made by the appellant in these emails, and which are relevant to this appeal. The approach of the appellant in sending emails to multiple addressees in various public authorities and other bodies is unhelpful, and also makes it difficult to...