Percy Podger and Associates obo Hands Across the Corrib Ltd. and An Bord Pleanála

• Case Number: CEI/09/0006
• Decision Date: 30 March 2010
• Issuer: An Bord Pleanála
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Percy Podger and Associates obo Hands Across the Corrib Ltd. and An Bord Pleanála

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/09/0006

Published on 30 March 2010

Appeal to the Commissioner for Environmental Information

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

Appellant: Percy Podger and Associates on behalf of Hands Across the Corrib Ltd, French Furze House, Kildare, Co. Kildare (the appellant)

Authority: An Bord Pleanála (the Board)

Whether the Board was justified in its refusal of access to environmental information sought by the appellant. The information sought was a transcript of the oral hearing held into the proposed Galway Outer City By-Pass

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 by reference to Articles 4 and 7 of the Regulations, the Board was not required in the circumstances of this case to provide the transcript which it did not hold . She found that its decision to refuse the request should have given reasons as to why the information was being provided in a format other than that requested and that it should have taken steps to ensure the easy accessibility of the information in the alternative format. Given the furnishing to the appellant in November 2009 of accessible versions of the information in audio format, she did not give any further directions to the Board.

Background

On 11 February 2009, the Secretary of Hands Across the Corrib Limited sought from the Board a transcript of the oral hearing into case reference PL07 ER2056 relating to the Galway City Outer By-Pass. The Board made its decision on 17 February 2009, effectively refusing the request and stating that "a transcript of the hearing has not and will not be made". The appellant, on behalf of Hands Across the Corrib Limited, sought an internal review of the decision. He said that his clients were in immediate need of the transcript in order to make their case in judicial review proceedings. He required the information in hard copy and CD. He said it was unreasonable to expect the Court to listen to 17 days of oral hearing (later it emerged that there was an audio record of 21 days). He also argued that ''undertakings'' had been given by the Board that a transcript would be supplied. He made reference to a previous oral hearing on a related project in which there had been a long delay in providing the transcript. On 19 March 2009, the Board issued its internal review decision affirming its original decision. It said that it did not have the transcript and that at no time did it prepare one. That decision was appealed to my Office and the appeal was accepted following payment of the statutory fee on 17 April 2009.

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

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 me. 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. The appellant has raised issues as to how the Board dealt with him in relation to the oral hearing including the question of public participation in relation to the proceedings. Some of these matters are outside my jurisdiction as Commissioner. In addition, I do not think it would be appropriate for me to respond in detail in this decision to the Appellant's derogatory comments about my Office other than to say that the investigation was carried out thoroughly and within jurisdiction. I accept that the review process took longer than I would have liked and my Office has apologised for the delays involved.

Submissions of appellant and the Board

In his appeal, the Appellant said that the transcript had been requested during and since the oral hearing. In correspondence with him, the Board had said that, under section 145(5) of the Planning and Development Act, 2000, as amended, it would make available for inspection and purchase the documents relating to its decision, including a copy of the transcript, within 3 working days of that decision which was made on 28 November 2008. When my Office contacted the Board in August 2009, it stated that it did not have a stenographic transcript of the oral hearing. It said that it had supplied the appellant with the proceedings of the hearing on audio CD. However, in his appeal, the appellant pointed out that he had been unable to open and use the CD's provided even though he regularly uses a computer. He said that he was unable to search and find material from the audio CD. I have no indication that this difficulty in accessing the CD's provided was raised with the Board by the Appellant.

Ms Brenda Lynch, Investigator of my Office, wrote to the Appellant on 13 August 2009 expressing the view that if the Board did not hold the transcript sought, it would not be reasonable to require it to create the information in that format given that the information is available in another form or manner. She also responded to the appellant's query to the effect that my remit as Commissioner does not extend to the Public Participation Directive 2003/35 EC.

The Appellant's response was that my Office should apply its attention to the ''deception and conduct of An Bord Pleanála towards [his client's] Public Participation " including the Board's undertakings to provide the transcript and the failure to do so in time. He pointed out that all public authorities are bound by Directive 2003/35 EC. He said that the Board had failed to give a reason why it did not provide the transcript and argued that the format provided was unreasonable. He provided copies of the computer discs and said that there was no index and that the information should be decipherable and assessable to a wide public and not merely to computer experts and the ''technologically adept". The appellant also criticised the delay in my Office's dealing with the appeal.

My Office had the CD's examined and concluded that the Appellant was correct in relation to the difficulty in assessing the information without proper instructions or IT expertise. Apparently, the audio CD's are playable through a program known as "Simple Player". When the file is opened in that program, details such as the time, who is speaking and an outline of the discussion at the oral hearing are provided, the text can be searched and one can jump to different sections of the recording. My understanding is that the necessary program was included in the CD but could not be run properly due to an error in the file names which prevented its proper installation.

Following my Office's further contacts, the Board acknowledged that there were problems with the CD's and on 28 October 2009 it provided a second set of the CD's which worked properly on my Office's computers when tested. My Investigator asked the Board to provide the appellant with new copies to include the correct software and operating instructions.

On 25 November 2009, my Investigator wrote to the Appellant setting out the position and asking that he contact her by telephone when he received the fresh set of discs from the Board as arranged. She expressed the view that the Board had now complied with the provisions of the Regulations in that it did not hold the information in the form of a transcript and had provided it in another format. On 30 November 2009, the Board sent a new copy of both discs to the appellant stating that there was new software contained therein together with a set of instructions to play the discs. The Board's executive officer suggested that if any further problems arose, the appellant should contact him; he supplied contact details for this.

On 11 December 2009, the Appellant wrote to my Office again criticising the delay in reviewing his case and pointing out that his appeal had specified that he wished to have the information immediately and have all the points he made investigated. He disagreed with the Investigator's assessment of the time it had taken for the Board to deal with his request and was highly critical of the Board's handling of the matter. In a response of 21 January 2010, my Office asked the appellant to clarify whether he had been able to access the information on the discs sent to him by the Board on 30 November 2009. The Investigator stated that, for the purposes of the Regulations, the request of 11 February 2009 was the relevant one. Apparently, the appellant had sought the information under the Directive in 2008 ; however, the internal review decision of the Board which gave the appellant the right of appeal to my Office under Article 12 of the Regulations was dated 19 March 2009.

Since January 2010 there has been some further correspondence from the Appellant but he has not responded to the request that he state whether he is now able to access the CD's sent to him on 30 November 2009. My Office informed him that unless it heard to the contrary, it was proceeding on the basis that he had been able to access the information in the discs provided.

Analysis and Findings

Legal Provisions

I consider it useful to set out the provisions...