Mr. Pat Swords and An Bord Pleanála

• Case Number: CEI/10/0002
• Decision Date: 16 July 2010
• Issuer: An Bord Pleanála
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Pat Swords and An Bord Pleanála

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/10/0002

Published on 16 July 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: An Bord Pleanála (the Board)

Whether the Board was justified in its refusal of access to environmental information comprising:

• the parameters the Board applies to assessing risk and determining acceptance criteria in the context of its decision to refuse permission for a 25 mm thick steel gas pipeline of 5000 mm diameter and planning guidelines for wind turbines
• the legislative basis for the oral hearing on the Corrib pipeline
• the procedures for conducting the hearing such as choice of staff, specific legislative areas to be addressed and other matters
• the specific approach of the Board to moving from a system of decision making 'based on Patronage' to one which implements the Environmental Acquis

Summary of Commissioner's Decision:

The Commissioner found that the Board was justified in its decision to refuse parts of the request on the basis that it did not hold environmental information within the scope of the request. She found that section 7(5) of the Regulations allows the Board refuse a request on the basis that the information is not held by it

Background

On 13 December 2009 and 22 September 2009, the applicant asked the Board for information on

the parameters the Board applies to assessing risk and determining acceptance criteria in the context of its decision to refuse permission for a 25 mm thick steel gas pipeline of 5000 mm diameter. Reference was also made to the planning guidelines for wind turbines and the Board's approach was questioned

• the legislative basis for the oral hearing on the Corrib pipeline
• the procedures for conducting the hearing such as choice of staff, specific legislative areas to be addressed and other matters
• the specific approach of the Board to moving from a system of decision making 'based on Patronage' to one which implements the Environmental Acquis.

Having had no decision on his request within the statutory period, the applicant applied for an internal review on 19 January 2010.

On 20 January 2010, the Board wrote to the applicant apologising for the delay in responding which it said was due to the ''misdirection'' of his requests which it described as ''an internal fault''. In relation to the legislative basis for the hearing and the procedures under which it was conducted, the Board referred to the Planning and Development Acts and Regulations and to published procedures on its website. In relation to the gas pipeline matter, the Board said that it was unable to establish what recent decision the applicant had in mind. It said that the applicant had declined an offer of assistance in clarifying this matter when a staff member had made contact with him. It regarded the request on the approach to the Environmental Acquis as too general and refused access under Article 9(2) of the Regulations.

The applicant took the decision of 20 January 2010 to be an internal review decision, given that no original decision under the Regulations had issued (so that a refusal was deemed to have been the decision). He forwarded correspondence to my Office, paid the statutory appeal fee and made an appeal under Article 12 of the Regulations.

I have taken account of the submissions of the applicant and the Board, the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive).

Elizabeth Dolan of my Office, sent her preliminary views to the applicant on 17 June 2010. The applicant responded and requested that I bring this appeal to a conclusion by way of a formal binding decision.

Scope of Review

Under Article 12 of the Regulations, I must review the decision of the Board in relation o the environmental information requested and affirm, vary or annul it. I emphasise, as I have had to do in other, similar cases in which the bulk of the applicant's submissions concern criticisms of public authorities, that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally.

Applicant's arguments

The applicant made detailed submissions criticising various aspects of the Board's work including the manner in which oral hearings are conducted and claiming that the Board did not clarify or adhere to the correct legislative basis in relation to assessment of risk and other related issues. He said that the fact that the parameters the Board uses in assessing risk and determining acceptance criteria are not available is a clear breach of the e relevant Eu Directives.

The Board's position

Much of the Board's submissions relate to the processing of the application and a claim that parts of the request were too general. I do not accept that the reference...