Mr. Pat Geoghegan and the Environmental Protection Agency

• Case Number: CEI/09/0004
• Decision Date: 28 October 2009
• Issuer: Environmental Protection Agency
• Applied Rules: Art.7(3) Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Pat Geoghegan and the Environmental Protection Agency

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/09/0004

Published on 28 October 2009

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

Appellant: Mr. Pat Geoghegan (the Appellant)

Public Authority: Environmental Protection Agency (the EPA)

Whether the EPA was justified in its refusal of access to environmental information sought by the Appellant on the grounds that the information sought was already available to the public; whether further information relevant to the request was held.

Summary of Commissioner's Decision

In accordance with article 12(5) of the Regulations, the Commissioner reviewed the decision of the EPA and found that the EPA was justified in its decision to refuse the request. However, she varied the basis for the decision and found that the provisions of Article 7(3) apply to the information sought which is held by the EPA and that the provisions Article 7(5) apply to the information which is not held. In addition, she commented on the making available of information for public viewing.

Background

The Appellant made a request under the Regulations to the Environmental Protection Agency (the EPA) on 15 October 2008, for access to :

"1- the report carried out by an EPA inspector following his visit to [the Appellant's] farm in March 2008

2- In relation to each of [the Appellant's] complaints on 27 separate dates between 29 August 2007 and 1 May 2008,

(a) the information requested by the EPA to Aughinish Alumina on air emissions

(b) Aughinish Alumina reply to EPA

(c) the EPA's own assessment of the data and reports supplied to them by Aughinish

(d) the EPA's own assessment and investigation of each complaint."

In its original decision of 14 November 2008, the EPA refused access under Article 4(1) of the Regulations on the basis that the Regulations do not apply to information that is required to be made available to the public, whether for inspection or otherwise, under any other statutory provision. It advised the Appellant of the relevant public files and its arrangements for viewing of files. In addition, 21 documents which were not available on the relevant public files were released. These included records relating to the first part of the request. The Appellant then sought an internal review of the EPA decision in relation to Items 2(a) - (d) of his request. The EPA, in its internal review decision of 15 January 2009, affirmed the original decision.

The Appellant appealed to this Office on 22 February 2009 and his appeal was accepted.

In reviewing this case, I have taken account of the following:

• submissions from the Appellant;
• submissions from the EPA;
• the legislation governing access to environmental information i.e. the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive);
• communications between my Investigator, Ms. Brenda Lynch and both the Appellant and the EPA.

Scope of Review

My review is concerned solely with the question of whether the EPA's decision to refuse access to environmental information was justified under the Regulations. The 21 records already released by the EPA are not considered to be within the scope of the review.

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. Therefore, the scope of the review by the Commissioner is limited to that of the original request. In this appeal, the review deals with the information sought under Items 2 (a) to (d) only as the internal review request, under Article 11, only deals with this part of the request.

Given the content of some of the Appellant's submissions in this appeal, I wish to emphasise at the outset 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 the administrative actions taken by public authorities. I have no jurisdiction to ''act against the EPA'' as suggested by the Appellant in relation to its handling of the complaints.

Legal Provisions

For convenience, the key legal provisions relevant to this appeal are set out below.

Article 4(1)

Article 4(1) of the Regulations provides as follows:

These Regulations apply to environmental information other than, subject to sub-article (2), information that, under any statutory provision apart from these Regulations, is required to be made available to the public, whether for inspection or otherwise

Article 7(3) and Article 7(5)

Article 7(3) provides as follows:

(3) (a) Where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless—

(i) the information is already available to the public in another form or manner that is easily accessible, or

(ii) access in another form or manner would be reasonable.

(b) Where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefor shall be given by the public authority in writing.

Article 7(5) provides:

(5) 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 inform the applicant as soon as possible that the information is not held by or for it.

Article 12 - Powers of the Commissioner

Article 12(5) sets out the functions of the Commissioner and Article 12(6) provides for what the Commissioner may do for the purposes of dealing with an appeal, as follows:

(5) Following receipt of an appeal under this article, the Commissioner shall—

(a) review the decision of the public authority,

(b) affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and

(c) where appropriate, require the public authority to make available environmental information to the applicant, in accordance with these Regulations.

(6) The Commissioner may, for the purposes of this article, do any of the following:

(a) require a public authority to make available environmental information to the Commissioner and, where appropriate—

(i) require the public authority concerned to attend before the Commissioner for that purpose, and

(ii) where the public authority is a body corporate, require its chief officer to attend,

(b) examine and take copies of any environmental information held by a public authority and retain it in his or her possession for a reasonable period,

(c) enter any premises occupied by a public authority and there require to be furnished with such environmental information as he or she may reasonably require, or take such copies of, or extracts from, any environmental information found or made available on the premises.

Analysis and Findings

Do the Regulations apply to the information sought?

In its original decision, the EPA refused access to the information sought on the basis of Article 4(1). In order to be satisfied that this provision did properly apply, my Investigator asked the EPA to identify the particular statutory provision under which it was required to make the information sought by the Appellant available to the public. The EPA advised that it was obliged to provide access to its licensing files under Article 23 of the Environmental Protection Agency (Licensing)...