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

• Case Number: CEI/09/0016
• Decision Date: 27 September 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/09/0016

Published on 27 September 2010

1. Summary of Commissioner's Decision:
2. Background
3. Scope of Review
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 Communications, Energy and Natural Resources (the Department)

Issue: Whether the Department was justified in its refusal of access to environmental information relating to aspects of the renewable energy programme.

Summary of Commissioner's Decision:

The Commissioner found that the Department was justified in its decision to refuse the request except insofar as it related to information provided to the Applicant in the course of the appeal on the basis that it did not hold further environmental information within the scope of the request. She found that section 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.

Background

On 22 September 2009, the Applicant sent a request to the Customer Service unit of the Department referring to the Regulations and seeking the following information/ responses to questions:

1. ''the Strategic Environmental Assessment for the Renewable Energy Programme

2. What was the pricing basis and justification (e.g. kg C02 per cent) for the renewable tariffs(14 cent per kWH for offshore wind, etc.), in other words costs, benefits, alternatives, principle of proportionality.

3. Specific details on other alternatives, such as generation using renewable sources like anaerobic digestion, waste to energy (incineration)., heat pumps, it would be nice to have it in a format such as the ExternE or at least in kg C02 per cent per kwh.

4. The 2006 Green Paper on Energy policy. Who wrote this, in particular the section on Nuclear Energy? What was his/her qualifications, I require the technical supporting documentation to the section on nuclear.

5. Who signed off on the Renewable Energy Programme both at Departmental level and at Ministerial level.''

The Department responded on 21 October 2009 giving some background information as regards its role and referring the Applicant to information published on its website. The Applicant responded to the Department on the same day stating that his questions had not been answered. On 16 November 2009, the Applicant sent an e mail to this Office referring to his request, the Aarhus Convention and what he termed the Department's failure to provide the information sought. My Office contacted the Department to clarify its handling of the matter and considered whether the applicant had made a valid appeal under the Regulations. On 11 December 2009, my Office wrote to the Applicant stating that it was prepared to accept his message of 16 November 2009 as an appeal subject to payment of the statutory fee required to validate it. Following payment of the fee, the Applicant's appeal was accepted on 17 February 2010.

Elizabeth Dolan, Senior Investigator of my Office, sent her preliminary views to the Applicant on 11 May 2010. She indicated that she would put further queries to the Department regarding the extent of the information held if the applicant would indicate what he believed was missing. She supplied the applicant with the position of the Department as established in my Office's investigation. The Applicant responded on 20 May 2010 in relation to each of the items identified and submitted detailed criticisms of the absence of technical information to support the Government's position on renewable energy. Ms Dolan identified the items within the original request which remained outstanding and put the issues to the Department on 21 May 2010. The Department responded on 18 June 2010.

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 Review

Under Article 12 of the Regulations, I must review the decision of 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 or the quality of technical information considered.

Following my Office's intervention and the applicant's submission of 20 May 2010, the following items within the request have been resolved on the basis set out and this decision will not deal any further with them:

Item 1: Strategic Environmental Assessment (SEA) for the Renewable Energy Programme

In response to my Office's queries as to whether an SEA existed, the Department confirmed that no such document is held since "'No strategic environmental assessment has been conducted by the Department in the renewable energy area". The Department 's response adds that Sustainable Energy Ireland is currently conducting an SEA to evaluate likely significant environmental effects of plans to develop offshore renewable energy such as wind, wave and tidal energy in Irish waters and the applicant that been directed to this.

Item 4; 2006 Green Paper on Energy Policy. Who wrote this, in particular the section on Nuclear Energy? What was his/her qualifications?

The Department said that Mr. Noel Dempsey T.D., then Minister for Communications Marine and Natural Resources, published the Energy Policy Green Paper, entitled "Towards a Sustainable Energy Future for Ireland", on 1st October 2006. According to the Department, there was a two-month consultation process signalled at the launch. Information was given to the public about how to make submissions to the Department of Communications, Marine and Natural Resources. Over 100 submissions were made which were published on the Department’s website The content of the consultation and submissions stages informed the Government’s energy policy White Paper, "Delivering a Sustainable Energy Future for Ireland A Framework for Energy Policy to 2020" which was launched and published in March 2007. The White Paper contained the Government’s agreed energy policy directions, and listed over 200 actions, targets and policies. The position of the Department is that documents such as the energy policy White Paper are statements of Government proposals and/or policy on particular policy issues. The energy policy White and Green Papers were considered, deliberated on and agreed by Government. The Department stated that various individuals worked on particular sections, but this does not affect the fact that they are Government statements, of proposals for energy policy.

The Department contended that the names and qualifications of all those who worked on the Energy Green Paper is not environmental information, in that it does not constitute information and/or data about the environment or factors underpinning it, as defined in Article 3 (1) (a) to (f) of the Regulations. The Applicant accepts the position regarding the individuals involved but wishes to pursue the element of item 4 which covers technical supporting documentation.This is addressed below.

Item 5:Who signed off on the Renewable Energy Programme both at Departmental level and at Ministerial level?

The Department does not describe the various schemes and polices in place on renewable energy as ‘the renewable energy programme.’ It says that renewable energy policy is part of overall energy policy which is set out in the Government’s 2007 White Paper on energy policy ‘Delivering a sustainable energy future for Ireland: The Energy Policy Framework 2007-2020.’ According to the Department, the then Taoiseach Bertie Ahern and then Minister for Energy Noel Dempsey wrote the forewords to the White Paper. The White Paper is a statement of overall collective Government policy and the paper was agreed by the Cabinet as a whole. The then Secretary General of the Department of Communications, Marine and Natural Resources would have had ultimate sign off of any draft documents in this context.

The Applicant accepts that this information adequately addresses item 5.

Applicant's arguments

The Applicant's submissions are discursive and critical of the Department's justification for certain positions. It is clear that he has examined various documents published on the Department's website and elsewhere; he takes issue with their content and conclusions. He concludes in relation to Item 2 (pricing basis and justification for renewable tariffs) that there is insufficient information on the criteria of environmental protection, sustainable development, local employment, social cohesion, security of supply and meeting Kyoto targets in relation to the tariffs. Essentially, he argues that further information on this should be held. Regarding...