Ms. Rita Canney and Waterford City Council

• Case Number: CEI/10/0015
• Decision Date: 23 October 2012
• Issuer: Waterford City Council
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Ms. Rita Canney and Waterford City Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/10/0015

Published on 23 October 2012

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) (AIE) Regulations 2007 to 2011

Appellant: Ms. Rita Canney, Waterford

Public Authority: Waterford City Council (the City Council)

Whether the City Council was justified in refusing the appellant's request for access to further relevant records relating to the Greening of Waterford Study and Report

Summary of Commissioner's Decision:

In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the City Council and found that it was justified in refusing the request for further documentation under Article 7(5) of the Regulations. She affirmed the decision of the City Council accordingly.

Background

The appellant made a request to the City Council, dated 13 April 2010, seeking access under the AIE Regulations to all information, whether in hard or soft copy format, relating to the Greening of Waterford Study and Report, excepting copies of the final report and previous drafts already in her possession. She specified that it was her preference to access the requested information at the offices of the City Council and then to obtain photocopies of the items of interest to her. As no action on her request was taken by the City Council within the one-month deadline specified in Article 7 of the Regulations, the appellant applied for internal review of the deemed refusal in a letter dated 9 June 2010. In a decision dated 12 July 2010, the City Council purported to grant the appellant's request by making a compact disc or CD of data regarding the Greening of Waterford Study and Report available to the appellant. The matter was subsequently appealed to my Office on the basis that the CD did not comply with the appellant's request.

I have now completed my review of the City Council's decision in this case under Article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the City Council and the appellant, including the submission made by the appellant, dated 4 June 2012, in response to the preliminary view letter issued by Ms. Melanie Campbell, Investigator, on 28 May 2012, and also her further submission dated 9 July 2012 that was made directly to the City Council but copied to this Office. I consider it appropriate to bring this appeal to conclusion at this time by way of a formal, binding decision. While my decision does not comment or make findings on each and every query raised by the appellant in her submissions, all relevant points have been considered.

Scope of Review

The City Council's position is that all relevant information that it holds is now available in hard or soft copy format at its offices. The City Council has acknowledged, however, that the software used for storing the soft copy records is "quite specialised" and thus difficult for an untrained person to avail of. I note that the difficulties have resulted in an understandable degree of frustration on the part of the appellant in her efforts to access the soft copy records regarding the Greening of Waterford Study and Report that have been granted to her.

The issue before me is whether the City Council was justified under Article 7(5) of the Regulations in refusing the appellant's request for access for further records relevant to her request dated 13 April 2010 on the basis that it does not hold the information requested. I will also address the issue of the form of access that has been granted to the appellant. However, although I have sympathy for the appellant in relation to the difficulties that she has encountered in her efforts to access the soft copy records that she seeks, I should also note for the sake of clarity it is not within my remit as Commissioner for Environmental Information to adjudicate on how public authorities carry out their functions generally, including with respect to their records management practices.

Analysis and Findings

Article 7(5)

The parties are aware of my approach in dealing with cases where a public authority has effectively refused a request under Article 7(5). In essence, where a public authority effectively seeks to refuse a request for environmental information on the basis of Article 7(5), I must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the relevant circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply.

In her statement of appeal and a submission dated 14 April 2011, the appellant identified certain relevant information that she considered that the City Council should hold, including field notes associated with the study. Other information that she identified as missing included:

large-scale maps of "Locally Sensitive Sites"

maps of other locally significant habitats referenced in the Greening Report (e.g., Oakland's wood, Goff's wood, woodland on Little Island, etc (Rocklands wood excepted [but in her submission dated 4 June 2012, the appellant clarified that she did not intend to exclude any maps or documentation concerning Rocklands Wood from the...