Peter Sweetman and Associates and An Bord Pleanála

• Case Number: CEI/09/0005
• Decision Date: 24 February 2010
• Issuer: An Bord Pleanála (the Board)
• Applied Rules: Art.4(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Peter Sweetman and Associates and An Bord Pleanála

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/09/0005

Published on 24 February 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: Mr. Peter Sweetman of Peter Sweetman and Associates, 14 Postnet, 184 Lower Rathmines Road, Dublin (the appellant)

Whether the Board was justified in its refusal of access to environmental information comprising copies of digital transcripts which the Appellant required to be furnished as soon as they are received by the Board.

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 it was justified in its decision to refuse the request. However, she varied the basis for the decision. The Commissioner was not satisfied that the Directive or the Regulations gave her jurisdiction to direct a public authority to release information in records which had not been created at the time the appellant made the request.

She also found that the provisions of Article 4(1) apply to the information sought as it is required to be made available to the public under another statutory provision i.e. Section 146(3) of the Planning and Development Act, 2000, as amended.

Background

The Appellant made a request to the Board on 23 March 2009 for "digital copies of the transcripts of the hearing into the Metro North ... as soon as they are received by the Board". He said that he required "an undertaking that the information would be available by 27 March 2009". In its decision of 27 March 2009, the Board refused access on the basis of Article 9(2)(c) of the Regulations; it said that the request concerns material in the course of completion. The Appellant then sought an internal review of the decision on 28 March 2009 and the Board issued its internal review decision on 3 April 2009, affirming its original decision. The Appellant submitted an appeal to this Office on 6 April 2009; the appeal was accepted on 30 April 2009 following receipt of the appropriate fee and confirmation that the appeal was valid.

In submitting his appeal on Monday 6 April 2009, the Appellant sought a decision from me by close of business on Friday 10 April 2009 (Good Friday). My staff made it clear to him that there was no possibility of a decision issuing in that timeframe nor was it possible to say when a decision could be expected to issue, as the extent or complexity of the issues which might arise in the appeal were not known at that time. He chose to proceed with the appeal. In arriving at my decision, I have taken account of the submissions of the Appellant and the Board and of the legislation governing access to environmental information i.e. the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive).

My investigator sent her preliminary views to the Board and to the Appellant on 17 December 2009. No response was received from the Appellant and the Board replied indicating that it had no objection to the preliminary views. Therefore, I have decided to bring this appeal to a conclusion by way of a formal binding decision.

By way of setting the matter in context, it is worth noting that, at the time of the Appellant's request, the oral hearing into the determination of a Railway Order application in respect of Metro North had not begun; it was scheduled to commence on 1 April 2009.

Apparently, a stenographic record of such hearings is taken on an ongoing basis and written and digital transcripts are supplied to the Board normally within 2 to 3 days of the close of proceedings. According to the Board, the purpose of such transcripts is to aid the reporting inspector in the assessment and to inform the Board's eventual decision. The relevant legal provisions for oral hearings are contained in the Planning and Development Acts, 2000 to 2006 and the Board has a document entitled "Guidelines on Procedures at Oral Hearings". I note that it is a matter for the inspector and/or the Board to decide what, if any, form of recording is appropriate to assist in making a recommendation/ decision and that the participation of parties is subject to the relevant planning legislation. While the inspector has discretion as to the conduct of an oral hearing, any submissions made to the hearing are to be available to participants and any member of the public as well as those who have sought to participate may attend the hearing. I note also that in this particular case the Railway Procurement Agency (RPA) made available on its website copies of its evidence to the hearing.

The subject matter of this appeal is very similar to that in Case Number CEI/09/0007 with which I am dealing, in that it also relates to access to transcripts of the oral hearing into Metro North.

Scope of Review

This review is concerned solely with whether the Board's decision to refuse access to the transcripts was justified under the Regulations.

The Regulations set out the circumstances in which an appeal may be made to the Commissioner. 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.

Analysis and Findings

Legal Provisions

I consider it useful to set out the provisions of the Regulations which are relevant to this appeal; I have also considered the relevant provisions of Directive 2003/4/EC:

Certain relevant terms are defined in Article 3, as follows:

“environmental information held by a public authority” means environmental information in the possession of a public authority that has been produced or received by that authority;

“environmental information held for a public authority” means environmental information that is physically held by a natural or legal person on behalf of that authority;

Article 4 of the Regulations provides as follows:

(1) These Regulations apply to environmental information other than, subject to sub-article

(2), information that, under any statutory provision apart from these Regulations, is required to be made available to the public, whether for inspection or otherwise.

(2) Notwithstanding—

(a) section 38 of the Planning and Development Act 2000 (No. 30 of 2000)

and any regulations made thereunder,

(b) sections 10 and 31 of the Air Pollution Act 1987 (No. 6 of 1987) and

any regulations made thereunder, and

(c) sections 6 and 89 of the Environmental Protection Agency Act 1992

(No. 7 of 1992)(as amended by the Protection of the Environment

Act 2003 (No. 27 of 2003)) and any regulations made thereunder,

environmental information held by, or on behalf of, a public authority shall be

made available in accordance with these Regulations.

Article 9(2)(c) provides as follows:

(2) A public authority may refuse to make environmental information available where the request -

(c) concerns material in the course of completion, or unfinished documents or data

Article 10(6) provides as follows:

(6) Where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the Applicant of the name of the authority preparing the material and the estimated time needed for completion.

Appellant's position

The Appellant argued that once the Board has received...