Mr. Pat Swords and RTÉ

• Case Number: CEI/09/0015
• Decision Date: 10 May 2010
• Issuer: RTÉ
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Pat Swords and RTÉ

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/09/0015

Published on 10 May 2010

Appeal to the Commissioner for Environmental Information

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

Appellant: Mr Pat Swords

**Whether RTÉ is a public authority for the purposes of Directive 2003/4/EC and the Regulations and whether it was justified in its refusal of access to environmental information concerning the criteria which it uses in regard to assessment of environmental impact, pollution, risk and hazard in reporting news connected to the "Environmental Acquis and industrial development"; qualifications of RTÉ personnel reporting on such matters; names and qualifications of all RTÉ researchers in the last 3 years responsible for editing and producing programmes related to the Corrib development; RTÉ policy in regard to "its obligation under the Aarhus legislation for dissemination of environmental information".

Note: RTÉ has since clarified that it has accepted since the coming into force of the Regulations that it is a public authority for the purposes of the Regulations and the Directive.**

Summary of Commissioner's Decision

The Commissioner found that RTÉ was justified in its decision to refuse the request on the basis that it did not hold environmental information within the scope of the request. She varied the decision to reflect her findings. She found that RTÉ comes within the definition of ''public authority'' in the Regulations and the Directive. She found that items 2 and 3 of the request did not come within the definition of environmental information. She further found that section 7(5) of the Regulations allows RTÉ to refuse a request in relation to items 1 and 4 of the request on the basis that the information is not held by it.

Background

On 26 October 2009, the Appellant made a request for environmental information to RTÉ under the Regulations, seeking :

1. The criteria RTÉ uses with regard to assessment of environment impact, environmental pollution, acceptable risk, unacceptable risk, unacceptable hazard;

2. The qualifications of RTÉ personnel who are reporting on matters relating to industrial development and implementation of the Environmental Acquis with regard to objectivity and accuracy;

3. The names and qualifications of all RTÉ researchers who in the last 3 years have been responsible for editing and producing programmes relating to the Corrib Gas development in North West Mayo;

4. RTÉ's policy with regard to its obligation under the Aarhus Convention for dissemination of environmental information.

The Appellant made criticisms of RTÉ's reporting of environmental matters, especially the coverage of the installation of the gas pipeline and terminal in Co Mayo.

In its response of 27 October 2009, RTÉ said that it did not carry out any of the functions mentioned in the first part of the request. In regard to the second and third parts, it said that it was not accepted that the information sought was environmental information. In response to the fourth part, RTÉ said that it cannot accept the claim that it had failed in any respect of its reporting . The Appellant, on 27 October 2009, responded to RTÉ's decision; this was accepted as an internal review application. He again commented on RTÉ's obligations and performance and said that items 1- 4 as requested by him had not been addressed as required under the legislation.

RTÉ internal review decision issued on 29 October 2009. It upheld the original decision stating that neither the Directive nor the Aarhus Convention apply to RTÉ and that if a complaint about its journalism was intended, this should be directed to the Broadcasting Authority of Ireland. The Appellant, on 31 October 2009, forwarded copies of the correspondence to my Office together with his concerns about how EU Environmental Policy is being portrayed in the Irish media. My Office contacted him to establish if he intended to appeal under the Regulations. He confirmed that he wished to do so and paid the statutory appeal fee.

I have taken account of the submissions of the Appellant and RTÉ, 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.

Elizabeth Dolan, Senior Investigator in my Office, sent her preliminary views to the parties on 20 April 2010. A detailed response was submitted by the Appellant on 22 April 2010 and RTÉ confirmed that it did not wish to make further submissions. I have decided to bring this appeal to a conclusion by way of a formal binding decision.

Scope of Review

Among the circumstances where requests are deemed to be refused under the Regulations (Article 11 refers) are those in which it is contended that a body is not a public authority for the purposes of the Regulations. Under Article 12 of the Regulations, I must review the decision of RTÉ and affirm, vary or annul the decision. I wish to emphasise that it is outside my remit as Commissioner 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 or not taken by public authorities; my role is confined to that prescribed in relation to appeals against decisions on requests for access to environmental

Submissions

Appellant's arguments

The Appellant's submission is that RTÉ is a public body with obligations under Directive 2003/4/EC. He argues that detailed regulatory submissions such as that prepared by the developer in the Corrib Gas case fall within the scope of the Directive and that bodies such as RTÉ have obligations relating to dissemination of such environmental information. He says that his request covers criteria for quality control because what has occurred in reporting of the Corrib and other development is ''unchecked sensationalist coverage'' . He refers to and encloses copies of guidelines and reports relevant to RTÉ and to the Corrib development together with copies of his exchanges with RTÉ in relation to his request.

The Appellant's response to my Office's preliminary views, accepts the views of the Senior Investigator; however, he requires a formal decision.

RTE's response

RTÉ 's position on the appeal is that it now accepts that it is a public authority for the purposes of the Regulations ** but takes the view that the request does not cover environmental information held by it by reference to the statutory definition. In any case, it says that it does not hold the information sought at items 1 and 4 of the request. In relation to items 2 and 3, it argues that information on the qualifications and training of staff who have worked on reporting on the Corrib Gas field is not environmental information. It says that all its journalistic staff are recruited by public competition and have third level qualifications. It further states that the search necessary to establish which staff worked on relevant programmes would be onerous given the number of stories covering the Corrib Gas situation and the variety of personnel involved. It queries whether the personnel information involved in staff files would constitute the personal information of individual staff. It confirms that specific in-house training on environmental maters had not been provided to staff.

**RTÉ subsequently clarified that it had always accepted that it is a public authority subject to the Regulations and the Directive.

Statutory Provisions

The Directive and Regulations set out the following definition in relation to what may be requested:

"environmental information held by a public authority" means...