Mr. Pat Swords and the Department of Environment, Heritage and Local Government

• Case Number: CEI/10/0016
• Decision Date: 29 July 2011
• Issuer: Department of Environment, Heritage and Local Government
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Pat Swords and the Department of Environment, Heritage and Local Government

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/10/0016

Published on 29 July 2011

1. Summary of Commissioner's Decision:
2. Background
3. Scope of Appeal
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) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Mr Pat Swords

Public Authority: Department of Environment, Heritage and Local Government (the Department)

Whether the Department was justified in its refusal of access to environmental information relating to foreshore licensing.

Summary of Commissioner's Decision:

The Commissioner found that the Department 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 found that Article 7(5) of the Regulations allows a public authority to refuse a request on the basis that the information requested is not held by it. She affirmed the Department's decision.

Background

On 27 June 2010, by email, the applicant sought two items of information relating to a foreshore licence for the Dublin City Waste to Energy Project:

1. "on what basis of 'public interest' has a Foreshore Licence not been awarded for the Poolbeg Incinerator, given that it was applied for two years ago;

2. what is the official position of the Department with regard to the processing of licences and permits, such as a foreshore application, within an appropriate timeframe and the Prevention of Corruption (Amendment) Act, 2001."

The Department issued a decision on 28 July 2010 refusing access to the information sought. The applicant made an internal review request in relation to the second part of his original request on 29 July 2010 and on 28 August 2010 wrote to the Department and provided clarification as follows: "I made it clear that I was requesting an internal review on the second question related to the timeframe for processing a foreshore licence."

On 30 August 2010, the applicant appealed to my Office the Department's failure to reply to his internal review request. At the request of this Office, the Department subsequently issued an "effective decision" on 3 December, 2010 which affirmed its initial decision on the request. It did, however, go on to state, in relation to the time limits for processing an application for a foreshore licence, that " the Foreshore Act 1933 does not specify time limits within which licence applications must be processed and accordingly there are no records available which address this issue".

I have decided to bring this appeal to a conclusion by way of a formal, binding decision. I have taken account of the submissions of the applicant and the Department, 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.

Scope of Appeal

Under Article 12 of the Regulations, I must review the decision of the Department and affirm, vary or annul it. I emphasise, as I have had to do in other cases, that it is outside of my remit as Commissioner to adjudicate on how public authorities carry out their functions generally. My Office does not have the authority to investigate or to comment upon the applicant's views or the Department's actions in relation to the policies involved.

As the applicant's internal review request related only to the second part of his original request, the scope of this appeal is therefore also limited to the second part of the request.

Statutory provisions

The Directive and Regulations set out the following definition in relation to what...