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

• Case Number: CEI/12/0005
• Decision Date: 20 September 2013
• Issuer: Department of Environment, Community and Local Government
• Applied Rules: Art.9(2)(a) Art.9(2)(b), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

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

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/12/0005

Published on 20 September 2013

1. Background
2. Scope of Review
3. Analysis and Findings
4. Decision
5. Appeal to the High Court

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2011

Appellant: Mr. Pat Swords (the Appellant)

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

Whether the Department was justified in refusing the appellant's request in relation to public consultation on climate policy and legislation

Background

On 7 March 2012, the appellant made a four-paged AIE request to the Department "in relation to Public Consultation on Climate Policy and Legislation". The request included commentary on the national climate policy and legislation development programme that had recently been initiated at the time and sought access to the following:

"Environmental information relating to public participation on climate change plans and programmes, which were conducted when all options were open and effective public participation in decision-making could take place."

"Environmental information on how due account of the public participation will be taken in the decision-making in relation to climate change plans or programmes."

"Cost-benefit and other economic analysis and assumptions used in the environmental decision making for the climate change plans or programmes being proposed."

"With regard to the statement above in relation to 'Science tell us . . . .', the request relates to environmental information in which the transparency of that statement is ensured."

In its initial response, which issued on 3 April 2012 at 8:55am, the Department did not treat the matter as a formal access request under Article 6 of the AIE Regulations, but rather provided an explanation of the then on-going public consultation exercise to which the request apparently referred. At 11:01am, the appellant requested an internal review. At 16:24, the Department replied to the appellant's request for internal review in which it explained that it had not previously considered the communication of 7 March 2012 to be a formal request for access to environmental information. The Department outlined the definition of "environmental information" under Article 3(1) of the Regulations and invited the appellant to specify the environmental information sought. However, in a reply received by the Department at 16:46 on that same day, the appellant stated:

"The request was very clear in relation to the environmental information sought, see attached. If you have no such environmental information or consider you do not have to release it in accordance with the terms of the regulations, then you should make that clear in accordance with Statutory Instrument S.I. No. 133 of 2007 and your own guidelines on the same."

On 9 May 2013, the Department refused the appellant's request, because it "did not contain any clear and identifiable request for specific environmental information" and "was not refined or clarified" despite correspondence from the Department. The Department neglected in its decision to inform the appellant of his right to appeal, but nevertheless, the appellant made a timely appeal to my Office on 10 May 2012. The appellant then made a submission in support of his appeal on 8 June 2012.

On 27 August 2012, Ms. Melanie Campbell, Investigator, wrote to the appellant to inform him of her view that the Department's decision to refuse his request was justified. The appellant replied to Ms. Campbell's letter on 8 September 2013. Having had regard to the appellant's submissions, I have decided to conclude this appeal by way of a formal, binding decision.

Delay in Processing the Appeal

In his submission dated 8 September 2013, the appellant refers to my duties under Article 9 of the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the "Aarhus Convention." He notes that, under Article 9(4) of the Aarhus Convention, review procedures are required to be "fair, equitable, timely and not prohibitively expensive". He states:

"With regards to 'timely', it is abundantly clear that the Commissioner's office essentially sat on the appeal and did absolutely nothing for over a year. This is an outrageous non-compliance with regard to the Commissioner's legal obligations."

As I have highlighted in my Annual Reports, since its inception, the OCEI has encountered a number of practical difficulties arising from the operation of the AIE regime. One problem is the matter of resources. Although the OCEI is a legally independent Office, to date, it has not received any funding allocation from the State and must rely entirely on the resources that can be made available from the very limited resources available to the Office of the Information Commissioner. Consequently, there generally are considerable delays in bringing AIE appeals to completion. The delays are certainly regrettable and arguably not in keeping with the State's obligations under the Aarhus Convention, and I apologise for any inconvenience caused. However, it must be acknowledged that the delays will be difficult to overcome given the demands of the AIE regime as it currently operates in Ireland on the one hand and the dearth of available resources on the other.

Scope of Review

My review in this case is concerned solely with the question of whether the Department was justified in refusing the appellant's AIE request "in relation to Public Consultation on Climate Policy and Legislation".

Definition of "environmental information"

The AIE Regulations are based on Directive 2003/4/EC. In line with Article 2(1) of the Directive, Article 3(1) of the AIE Regulations defines "environmental information" as

"any information in written, visual, aural, electronic or any other material form on-

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites . . . and the interaction among these elements,

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