Mr. Pat Swords and the Department of Communications, Energy and Natural Resources

• Case Number: CEI/11/0003
• Decision Date: 28 October 2010
• Issuer: Department of Communications, Energy and Natural Resources
• 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 Communications, Energy and Natural Resources

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/11/0003

Published on 28 October 2010

Appeal to the Commissioner for Environmental Information

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

Appellant: Mr Pat Swords

Public Authority: Department of Communications, Energy and Natural Resources (the Department)

Issue: Whether the Department was justified in its refusal of access to environmental information sought relating to the then Minister Ryan's appearance on RTE's Primetime programme on 14 December 2010, and his remarks on wind energy.

Summary of Commissioner's Decision

In accordance with article 12(5) of the Regulations, the Commissioner has reviewed the decision of the Department and finds that the information sought, apart from that provided by the Department in response to the original request, is not held at this time and Article 7(5) of the Regulations applies. She affirms the decision of the Department accordingly.

Background

In his original request of 23 December 2010, the appellant referred to the then Minister Ryan's appearance on RTE's Primetime programme on 14 December 2010, and his remarks on wind energy. The appellant sought a full list of documentation referred to by Minister Ryan and asked that the relevant content which supported his comments be identified. In its decision of 21 January 2011, the Department identified four reports and provided copies of these to the appellant. The Department also identified reports, being prepared by other organisations, it was aware of which were due to be published shortly and provided some additional information. The appellant sought an internal review of the Department's decision as he was not satisfied that the information provided supported the remarks made by the Minister with regard to the price of electricity for consumers. In its internal review decision, the Department affirmed its original decision and said that it had provided the appellant with the relevant material and had no further relevant information available.

The Department's decision was appealed to this Office on 30 January 2011.

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 appellant 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. Please note that I have not seen the programme the subject of the request nor have I had the opportunity to examine any transcript of the remarks made.

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.

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 environmental information in the possession of a public authority that has been produced or received by that authority;

Article 3(1) of the Regulations defines "environmental information" as

"any information in written, visual, aural, electronic or any other material form on.... [elements, measures, reports etc. affecting or relating to the environment and factors affecting it detailed at (a) - (f)]''

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

Article 7(9) of the Regulations provides:

"Where, in a request for information on factors affecting or likely to affect the environment, the applicant specifies that he or she requires information on the measurement procedures, including methods of analysis, sampling...