Ms Rita Canney and Waterford City Council

• Case Number: CEI/10/0017
• Decision Date: 16 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/10/0017

Published on 16 October 2012

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 documentation pertaining to the Glanbia site

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

This appeal relates to a request made to the City Council, dated 7 April 2010, for access under the AIE Regulations to "all Unauthorised Development files which have been opened to date in respect of the lands outlined on the attached drawing and to any other documentation (including e-mails) not contained on an official UD file but which relate to concerns or comment in respect of clearance works/perceived clearance works on the subject site - and - to all pre-planning minutes/documentation concerning planning application 10/35, which pertains to the subject site." The matter was appealed to my Office on the basis of the City Council's deemed refusal of the request at the original and internal review decision-making stages.

On 16 November 2010, the City Council issued a statement claiming that no Unauthorised Development files had been opened in respect of the clearance works on the site concerned, which has usually been referred to throughout these proceedings as the Glanbia site. The Council also claimed that no records existed in relation to the request for pre-planning minutes/documentation concerning planning application 10/35.

The appellant challenged the City Council's response in a submission to this Office dated 1 December 2010. In relation to the Council's claim that no Unauthorised Development files were opened in respect of the Glanbia site, the appellant referred to file UD 108-04. She stated that, as the City Council had not made reference to this file, she questioned whether the City Council had properly addressed her request. In relation to her request for "other documentation . . . in respect of clearance works", the appellant referred in particular to the absence of any mention of a "weeping ash tree" that had been the subject of a Tree Protection Order (TPO PD 271/76) for the Glanbia (Glenville) site. Lastly, she disputed the City Council's claim that it does not hold any minutes of pre-planning meetings pertaining to the site, and she provided further submissions in support of her position on 7 December 2011 and 7 January 2011, respectively.

Subsequently, on 9 January 2011, the appellant made a new request for access to all documentation pertaining to TPO PD 271/76. This request ultimately gave rise to Case CEI/11/0009, which concluded by way of a decision by me on 7 June 2012.

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 11 May 2012, in response to the preliminary view letter issued by Ms. Melanie Campbell, Investigator, on 19 April 2012. As with Case CEI/11/0009, I consider it appropriate to conclude the matter the matter 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

I note that it is the City Council's position that all relevant records that it holds are now on file and available for viewing by the appellant. 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 to further records relevant to her request dated 7 April 2010 on the basis that it does not hold the information requested. For the sake of completeness, I will also comment briefly on the issue of the form of access that has been granted to the appellant. However, as the appellant is aware, 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

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.

Unauthorised Development Files

During the course of the review in this case, Ms. Honor Dunphy, Administrative Officer, explained the City Council's reasons for not previously making mention of UD 108-04. She also explained the steps taken to search for any additional unauthorised development files relating to the Glanbia site and also certain clearance works carried out on the site involving invasive species.

In her submission dated 15 May 2012, the appellant accepted that the City Council has now carried out an adequate search for any further unauthorised development files. It seems therefore that there is no dispute that the City Council does not hold any other unauthorised development files relating to the Glanbia site. The appellant wishes me to comment on the fact that the City Council initially limited its search to a five-year timeframe despite the fact that her request included no such time limitation. However, I note that, following her appeal, the City Council extended its search of its own accord, thus evidently recognising that its search had initially not been adequate. In any event, in light of Ms. Dunphy's explanations, I am...