New Morning Intellectual Property Limited and Transport Infrastructure Ireland

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0014
• Decision Date: 27 March 2017
• Issuer: Transport Infrastructure Ireland
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007

New Morning Intellectual Property Limited and Transport Infrastructure Ireland

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0014

Published on 27 March 2017

1. Background
2. The AIE Request
3. Relevant AIE provisions
4. The decision under review
5. Decision
6. Appeal to the High Court

Background

TII was established through a merger of the National Roads Authority and the Railway Procurement Agency under the Roads Act 2015.

The AIE Request

On 29 January 2016 the appellant company submitted an AIE request to TII asking for the following information:

1. "The raw data for all traffic counters installed on the M1 motorway for all years available, and

2. The meta data in each case".

In the written request, under the heading "Format", the appellant said:

"I wish to receive all of the information in electronic format and in relation to part 1 of the request in a machine-readable format that can easily be imported into Microsoft Excel (i.e. CSV, XLS etc.).... Alternatively, publication on the TII website would be a satisfactory way of granting the request."

On 26 February 2016, TII gave notice of its decision to refuse the request because:

"Under article 6 of the AIE Regulations, applications for information on the environment should 'state, in terms that are as specific as possible, the environmental information that is the subject of the request'. Following consideration of your request, it is our view that your request does not fall within the scope of the Regulations concerned."

On receipt of this decision, the appellant company requested a review of this decision, adding that it had "stated in clear terms the scope of [the] request".

Having received no review decision by 29 March 2016, the appellant company appealed to my Office. When informed by my Office that an appeal had been made, TII said (on 31 March 2016) that "we are "currently finalising our internal review of our earlier decision and will be issuing our response to the requester shortly". TII did not subsequently issue an internal review decision. In any event, the time for issuing such a decision had passed.

On several occasions during my Office's investigation of this case the possibility of a settlement arose. Regrettably, while time was spent on exploring such possibilities, no settlement was reached and it became necessary to proceed to a formal decision.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the decisions of public authorities and to affirm, annul or vary such decisions. Ordinarily, if I find that refusal was not justified for the reasons given in a particular decision, my role is to decide whether it would be appropriate for me to require the public authority to make environmental information available to the appellant. However, this appeal involves a threshold jurisdiction question: was the request which gave rise to this appeal a valid AIE request? My Office's Manual of Procedures (available http://www.ocei.gov.ie/en/About-Us/Policies-and-Strategies/FOI-Manuals/Procedures-Manual/ ) sets out (on page 12) how I deal with threshold jurisdiction cases. It explains that:

"A determination on the threshold question must be made before the review may proceed. Once the determination is made that the matter is within the remit of AIE, and no appeal to the High Court is made, the public authority should then deal with the request in accordance with the Regulations. If the appellant remains dissatisfied with the handling of his/her request following internal review and thus appeals again to this Office with respect to the original request, then the matter will be reopened administratively without payment of a new fee and given priority treatment by this Office insofar as it is practicable to do so."

My task at this stage, therefore, is to review TII's decision to reject the AIE request as invalid.

In conducting my review I took account of the submissions made by the appellant and by TII. I had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister's Guidance); Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention -- An Implementation Guide (Second edition, June 2014).

Relevant AIE provisions

Article 3(1) provides that "environmental information" means any information in written, visual, aural, electronic or any other material form on:

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);

Article 6(1)(d) provides that a request for environmental information shall state, in terms that are as specific as possible, the environmental information that is the subject of the request.

Article 6(1)(e) provides that a request for environmental information shall, if the applicant desires access to environmental information in a particular form or manner, specify the form or manner of access desired.

Article 7(3) provides as follows:

(a) Where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless --

(i) the information is already available to the public in another form or manner that is easily accessible, or

(ii) access in another form or manner would be reasonable.

Article 7(8) provides that where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.

Article 9(2)(a) provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought.

Article 9(2)(b) provides that a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8).

The decision under review

As no review decision was issued by TII, the decision to be reviewed is TII's original decision....