Mr. Tony Lowes, Friends of the Irish Environment and the Office of the Attorney General (AGO)

• Case Number: CEI/09/0014
• Decision Date: 03 May 2012
• Issuer: Office of the Attorney General (AGO)
• Applied Rules: Art.9(2)(a), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Tony Lowes, Friends of the Irish Environment and the Office of the Attorney General (AGO)

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/09/0014

Published on 3 May 2012

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. Tony Lowes, Friends of the Irish Environment, Kilcatherine, Eyeries, Co. Cork

Public Authority: Office of the Attorney General (AGO)

Whether the AGO was justified in refusing a request for access to all records held in relation to two cases brought against Ireland by the European Commission [Case C-392/96 and Case C-294/03]

Summary of Commissioner's Decision

In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the AGO and found that it was justified in refusing the request under Article 9(2)(a) of the Regulations. She affirmed the decision of the AGO accordingly.

Background

The appellant made a request to the AGO, dated 21 July 2009, seeking access under the Access to Information on the Environment (AIE) Regulations to all records held, including but not limited to Letters of Formal Notice, Reasoned Opinions, advice sought or received [including all legal advice], minutes of meetings, and all internal and external communications by email or otherwise, in relation to two cases brought against Ireland by the European Commission [Case C-392/96 and Case C-294/03]. The AGO took no action on the request within the one-month deadline specified in Article 7 of the Regulations. On internal review, however, the AGO refused the request in reference to Article 6(1)(d) of the Regulations, stating that the request was not specifically directed to environmental information and therefore fell outside the scope of the Regulations.

An appeal against the AGO's decision was made to my Office on 10 September 2009. Following acceptance of the appeal, a review of the AGO's decision was initiated by Ms. Brenda Lynch, Investigator. On 13 November 2009, Ms. Lynch met with Mr. Christopher O'Toole, Advisory Counsel, at the premises of the AGO and was shown the files identified as relevant to the request. One week later, the AGO forwarded a sample of the relevant records to my Office for the purposes of the review. Regrettably, a long delay then arose in making further progress with the appeal due to staff shortages and personnel changes in this Office.

The case was ultimately reassigned to Ms. Melanie Campbell, Investigator. On 22 March 2012, Ms. Campbell wrote to the appellant explaining her preliminary view on the matter. The appellant was given a period of three weeks in which to reply, but no reply to Ms. Campbell's preliminary view letter has been made by the appellant to date. However, I have had regard to the arguments made by the appellant in support of his appeal. I have also had regard to the submissions made by the AGO dated 7 October 2009 and 20 November 2009, respectively, and to Ms. Lynch's written report of her meeting with Mr. O'Toole dated 13 November 2009. In addition, I have examined the sample of records provided. I have decided to bring this appeal to conclusion by way of a formal, binding decision.

Deemed Refusal - Refund

In December 2011, the Regulations were amended by the European Communities (Access to Information on the Environment) (Amendment) Regulations 2011 (S.I. No. 662 of 2011). Under Article 12(6) of the Regulations, as amended, I may now waive all or part of the appeal fee where the original decision was untimely, i.e. where there was a deemed refusal of the original request.

In this case, the AGO apologised in its internal review decision for its failure to make any response to the appellant's original request. It admitted that the request was received in the Office but that no file was opened. As noted above, staff shortages and personnel changes in this Office then resulted in a long delay in making progress with the appeal. In the circumstances, I consider that a full refund of the appeal fee is warranted.

Scope of Review

My review in this case is concerned solely with the question of whether the AGO was justified in refusing the appellant's request for access to all records held, including but not limited to Letters of Formal Notice, Reasoned Opinions, advice sought or received [including all legal advice], minutes of meetings, and all internal and external communications by email or otherwise, in relation to two cases brought against Ireland by the European Commission [Case C-392/96 and Case C-294/03].

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...