Ms. Rita Canney and Waterford City Council

• Case Number: CEI/11/0009
• Decision Date: 07 June 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/11/0009

Published on 7 June 2012

1. Background
2. Deemed Refusal - Refund
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) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Ms. Rita Canney, Waterford

Public Authority: Waterford City Council (the City Council)

Issue: Whether the City Council was justified in refusing the appellant's request for access to further documentation pertaining to TPO PD 271/76, in particular, the original TPO file

Background

The appellant made a request to the City Council, dated 9 February 2011, seeking access under the Access to Information on the Environment (AIE) Regulations to all documentation pertaining to Tree Protection Order (TPO) PD 271/76, which relates to trees on lands associated with the Glanbia premises, (Glenville), Maypark Lane, Waterford. As no written decision was made by the City Council within the one-month deadline specified in Article 7 of the Regulations, the appellant applied for internal review in a letter dated 28 March 2011 on the basis of the City Council's deemed refusal of her request. In her letter, the appellant emphasised that she had been informed by Waterford County Council (the County Council) that the file in question was transferred to the City Council following the boundary extension that took place in 1980. She also noted that the Waterford City Development Plan 2007-2013, like the Waterford City Development Plan 2002, made reference to "two extant TPOs in the City relating to trees in the grounds of the Glanbia plant at Maypark Lane and at Ballindud House". In her view, these references suggested that the Local Authority officials were familiar with the content of the TPO file concerned.

Again, no written decision was made by the City Council within the relevant time limit set out in the Regulations. Belatedly, however, on 16 May 2011, the City Council issued a statement explaining that some information relating to TPO PD 271/76 had been located and was available on file in the Environmental Services and Planning Office, but that the original documentation relating to the TPO could not be found. According to the City Council, "there is no record of this TPO in the files that were transferred from the County to the City in 1980". An appeal against the City Council's decision was received by my Office on 10 June 2011.

During the acceptance stage of the appeal, my Investigator, Ms. Melanie Campbell, noted that the subject matter overlapped in some degree with that of a previous appeal made by the same appellant, referenced CEI/10/0017. Indeed, a copy of the TPO for the Glenville site, apparently sourced from interested members of the Waterford City community, was included with a submission made by the appellant in the earlier case, as was a copy of a decision dated 21 April 2010 by the County Council relating to the TPO concerned. Therefore, Ms. Campbell decided to deal with the two related cases together. Following the receipt of a requested submission from the City Council dated 22 March 2012 in relation to its search for relevant records, Ms. Campbell wrote to the appellant explaining her preliminary view on the matters at issue. In her reply dated 11 May 2012, the appellant raised a further line of relevant enquiry in relation to Case CEI/10/0017; therefore, the earlier, related appeal remains pending. However, 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.

Deemed Refusal - Refund

In December 2011, the Regulations were amended by the 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.

The appellant has expressed dissatisfaction with the manner in which the City Council handled her request in this and other similar cases that are still pending before my Office. In a submission made in Case CEI/10/0017, the City Council suggested that the circumstances of moving the entire Planning Office and also difficulties with its Internet firewall may account for the communication problems experienced in connection with the appellant. In a submission made in this case, the City Council has also insisted that it is a "very open and transparent organisation" and it has assured this Office that "as an organisation we do not intentionally withhold records when they are sought". Like Ms. Campbell, I have no reason to doubt that the City Council has acted in good faith in this and other similar cases and in its dealings with this Office generally. I also recognise that, in the present economic environment, public bodies and authorities across the public sector are facing significant challenges in delivering a quality service with diminishing resources. Nevertheless, as there was no response to the appellant's original request in this case, and as the decision which ultimately issued following the appellant's internal review request was untimely, I agree with Ms. Campbell that a full refund of the appeal fee is warranted. The appellant's comments regarding the appropriate party to bear the cost of the refund have been noted.

Scope of Review

My review in this case is concerned solely with the question of whether the City Council was justified in refusing the appellant's request for access for further documentation pertaining to TPO PD 271/76, in particular, the original TPO file. 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. The appellant has also been informed that my Office has no enforcement powers in relation to Article 5 of the Regulations.

Analysis and Findings

Article 7(5)

The City Council claims, in essence, that it does not hold any further relevant records, in particular, the original TPO file sought by the appellant. Article 7(5) of the AIE Regulations is the relevant provision that applies where the requested information is not held by or for the public authority concerned. A similar though not identical ground for refusal in relation to records ''not held'' is provided for under section 10(1)(a) of the Freedom of Information (FOI) Act. In previous decisions published on my website at www.ocei.gov.ie, I have explained that my approach in dealing with cases where a public authority has effectively refused a request under Article 7(5) is guided by the experience of the Office of the Information Commissioner in relation to section 10(1)(a) cases. For instance, in CEI/08/0012, Cllr Cullen and Department of Environment, Heritage and Local Government (27 Oct. 2009), I stated:

"In cases where the public authority claims not to hold the environmental information requested, I consider that my role is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public authority in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the information along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the information in question. On the basis of the...