Ms. Una Caulfield, Director, Residents for Realignment Ltd. and An Bord Pleanála

• Case Number: CEI/09/0007
• Decision Date: 24 February 2010
• Issuer: An Bord Pleanála
• Applied Rules: Art.4(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Ms. Una Caulfield, Director, Residents for Realignment Ltd. and An Bord Pleanála

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/09/0007

Published on 24 February 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

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

Appellant: Ms. Una Caulfield, Director, Residents for Realignment Ltd, 2 Bantry Road, Drumcondra, Dublin 9. (the Appellant)

Public Authority: An Bord Pleanála (the Board)

Whether the Board was justified in its refusal of access to environmental information sought by the Appellant.

Summary of Commissioner's Decision:

In accordance with article 12(5) of the Regulations, the Commissioner reviewed the decision of the Board and found that it was justified in its decision to refuse the request. However, she varied the basis for the decision. The Commissioner was not satisfied that the Directive or the Regulations gave her jurisdiction to direct a public authority to release information in records which had not been created at the time the Appellant made the request.

She also found that the provisions of Article 4(1) apply to the information sought as it is required to be made available to the public under another statutory provision i.e. Section 146(3) of the Planning and Development Act, 2000, as amended.

Background

The Appellant made a request to the Board on 5 March 2009, asking the Board to "broadcast the Oral Hearing into Metro North on the web, and to make the transcripts of the hearing available on-line at the end of each day". In its decision of 27 March 2009, the Board refused access on the basis of Article 9(2)(a) and (c) of the Regulations. The Appellant then sought an internal review of the decision on 30 March 2009 and the Board issued its internal review decision on 3 April 2009, affirming its original decision to refuse access on the basis of Article 9(2)(c) and stating that the Board was satisfied that the Regulations did not apply to the Appellant's request for webcasting. The Appellant submitted an appeal to this Office on 14 April 2009, which was accepted on 30 April 2009 following receipt of the appropriate fee and confirmation that the appeal was valid.

In arriving at my decision, I have taken account of the submissions of the Appellant and the Board and of the legislation governing access to environmental information i.e. the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive).

My investigator sent her preliminary views to the Board and to the Appellant on 23 December 2009. Responses were received from the Appellant and the Board. Therefore, I have decided to bring this appeal to a conclusion by way of a formal binding decision.

By way of setting the matter in context, it is worth noting that, at the time of the Appellant's request, the oral hearing into the determination of a Railway Order application in respect of Metro North had not begun; it was scheduled to commence on 1 April 2009.

Apparently, a stenographic record of such hearings is taken on an ongoing basis and written and digital transcripts are supplied to the Board normally within 2 to 3 days of the close of proceedings. According to the Board, the purpose of such transcripts is to aid the reporting inspector in the assessment and to inform the Board's eventual decision. The relevant legal provisions for oral hearings are contained in the Planning and Development Acts, 2000 to 2006 and the Board has a document entitled "Guidelines on Procedures at Oral Hearings". I note that it is a matter for the inspector and/or the Board to decide what, if any, form of recording is appropriate to assist in making a recommendation/ decision and that the participation of parties is subject to the relevant planning legislation. While the inspector has discretion as to the conduct of an oral hearing, any submissions made to the hearing are to be available to participants and any member of the public as well as those who have sought to participate may attend the hearing. I note also that in this particular case the Railway Procurement Agency (RPA) made available on its website copies of its evidence to the hearing.

The subject matter of this appeal is very similar to that in Case Number CEI/09/0005 with which I am dealing, in that it also relates to access to transcripts of the oral hearing into Metro North.

Scope of Review

This review is concerned solely with whether the Board's decision was justified under the Regulations.

The Regulations set out the circumstances in which an appeal may be made to the Commissioner. Under Article 12(3), an appeal may be made against a decision of a public authority under Article 11 i.e. against an internal review decision. In turn, a request for an internal review under Article 11 must relate to a request which has been refused under Article 7 which provides for the action to be taken on a request for environmental information.

Analysis and Findings

Legal Provisions

I consider it useful to set out the provisions of the Regulations which are relevant to this appeal.

Certain relevant terms are defined in Article 3, as follows:

“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;

“environmental information held for a public authority” means environmental information that is physically held by a natural or legal person on behalf of that authority;

Article 4 provides as follows:

"(1) These Regulations apply to environmental information other than, subject to sub-article (2), information that, under any statutory provision apart from these Regulations, is required to be made available to the public, whether for inspection or otherwise.

(2) Notwithstanding—

(a) section 38 of the Planning and Development Act 2000 (No. 30 of 2000)and any regulations made thereunder,

(b) sections 10 and 31 of the Air Pollution Act 1987 (No. 6 of 1987) andany regulations made thereunder, and

(c) sections 6 and 89 of the Environmental Protection Agency Act 1992(No. 7 of 1992)(as amended by the Protection of the Environment Act 2003 (No. 27 of 2003))and any regulations made thereunder,

environmental information held by, or on behalf of, a public authority shall be made available in accordance with these Regulations.

Article 9(2) provides as follows:

"A public authority may refuse to make environmental information available where the request -

(a) is manifestly unreasonable having regard to the volume or range of information sought...

(c) concerns material in the course of completion, or unfinished documents or data"

Appellant's submissions and Board's response

In its original refusal the Board said that the request was manifestly unreasonable under Article (2)(a) of the Regulations and that the information was in the course of completion (Article 9(2)(c)). In its internal review decision, the Board stated that the person conducting the oral hearing is obliged to do so "without undue formality" and that persons making submissions must not be put under any undue pressure such as might arise in the event of proceedings being streamed on the internet. It said that for "legal, logistical, financial, procedural and efficiency reasons" it would not be reasonable or practical to stream the proceedings live on the internet. Further, it considered that the part of the request relating to the web broadcast was not a request for environmental information as defined but a request as to the conduct of the oral hearing.

The Appellant said in her request that her organisation is a voluntary one with the aim of informing the local community of issues arising from the construction and operation of the proposed metro. She contends that the Directive and the Regulations oblige the Board to allow the local community to fully participate in this important process and that failure by the Board to comply with the Directive may mean that the oral hearing process and any decisions from it will be judicially reviewed. She argues that complying with the request would require very little expense in the context of the process as a whole and that the Directive places an obligation on the public authority to be pro-active in releasing the information. She says that, by definition, transcripts are...