Phillip Cantwell and Meath County Council

• Case Number: CEI/15/0021
• Decision Date: 04 November 2016
• Issuer: Meath County Council
• Applied Rules: Art.3(1) Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Phillip Cantwell and Meath County Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0021

Published on 4 November 2016

Background

This case concerns a project which saw the realignment of the R158 regional road linking Trim in County Meath to Kilcock in County Kildare. The project was completed in 2008. The appellant is a former Meath County Councillor, a former Trim Town Councillor, and the owner of land at Stokestown, County Meath.

On 26 May 2015, the appellant delivered an AIE request (later designated request 'B') to the Council. It was addressed to an individual Council officer and its heading was as follows:

"Re: European Communities (Access to Information on the Environment) Regulations 2007 - 2014, Re: R158 Phase I and II Trim - Kilcock re disposal of all waste and or waste/surplus materials"

It said:

"I refer to the above disposal of waste and or surplus materials from the Contract Phases I and II in the upgrade of the Trim to Kilcock R158 Regional Road. At the request from EPA's Environmental Enforcement, Meath County Council under your supervision and guidance carried out a Tier 1 Study of the waste/surplus materials, including contaminated tar products, on our lands at Stokestown, Trim.

According to the front page of this Tier 1 Study dated July 2014, the Report was prepared by [the Council's] executive engineer and Environment Section.

On the bottom of page 6 of this Tier 1 Study, [the executive engineer] stated:

"The unauthorised waste activity carried out on these lands at Stokestown would be representative of a typical authorised R10 'Land treatment resulting in benefit to agriculture or ecological improvement' as specified in the Waste Management Act 1996 as amended and permitted by the relevant Local Authority by way of a Certificate of Registration under the Waste Management (Facility Permit and Registration) Regulations 2007".

The appellant then listed 5 numbered parts to his request.

On the same day, he delivered another AIE request (later designated request 'C') to the Council. It was addressed to a different Council officer, and its heading was as follows:

"Re: European Communities (Access to Information on the Environment) Regulations 2007 - 2014 - R158 Phase II Summerhill - Kilcock Final Account, as referred to in letter of 30 October 2008 - i.e. assemble all claims and payments for disposal of waste/surplus materials."

It said:

"I wish to track disposal of R158 waste and surplus material ASAP - from its origin to final disposal. I attach a copy of letter of 30 October 2008, i.e. [the project's construction contractor] to [the project's consultant engineer] re Final Account of the R158 Contract.

He then listed 6 numbered parts to this request.

On the same date, he delivered another AIE request (later designated request 'D') to the Council. It was addressed to a different Council officer and it bore the following heading:

"Your Ref: AIE-01/15 & AIE - 02/15 EU Access to Information on Environment on R158."

It said:

"I wish to trace the waste/spoil material Phases 1 and 2 of R158 contract, its origin and excavation to its final destination, including the use of invoices/payments to check.

I wish to continue using AIE for Phase 1 and Phase 2, however to reduce the work on your staff, please provide the following for Phase 1 now (Phase 2 documents at a later stage)."

He then listed 11 numbered parts to this request.

The following day, he delivered another AIE request (later designated request 'A') to the Council. It was addressed to a different Council officer, bore the same heading as request 'B', and it said:

"I refer to [agent for construction contractor's] letters to you of 2-11-14 and 23-5-15 re the disposal of waste and or surplus materials from Meath County Council's R158 Contract which you forwarded to EPA's Environment Enforcement Department.

In keeping with contents of [agent for construction contractor's] letters, please ask [the construction contractor] to provide the following information:"

It went on to list 10 numbered parts to this request.

On 5 June 2015, the Council informed the appellant that it intended to treat the four requests collectively, and to label them as requests A, B, C and D (as indicated above).

On 22 June 2015, the Council gave its decisions. In summary, the decisions were as follows:

Request A

The Council noted that this request asked the Council to obtain information from a third party and it also noted that the AIE Regulations do not require public authorities to create records. Notwithstanding this, the Council proceeded to address each part of the request in turn. In relation to part 1 of the request, it noted that the appellant had previously been given certain relevant information from a third party. It said that it did not hold information meetings parts 2, 4, 5, 6, 7, 8 and 10. In relation to part 3, the Council said that it would take an estimated 25 hours to search for and retrieve the minutes of what it estimated to be 50 meetings, and said that this would be charged at a rate of €20 per hour (which would amount to €500). In relation to part 9, the Council said that the Bill of Quantities had already been made available to the appellant for inspection.

Request B

Part of this request concerned what are known as "R10 land treatments". "R10" is the Environmental Protection Agency's (EPA's) code for the authorised and ecologically beneficial application of waste materials to land. The Council said that details of all R10 land treatments in County Meath are listed on the EPA's website and if the appellant indicated a specific file from this list the Council would endeavour to locate it, for a search and retrieval charge.

In relation to other parts of the request, the Council denied that cheques, receipts or details of a council official's professional qualifications constitute environmental information.

Request C

The Council denied that the requested information is environmental information.

Request D

The Council provided some of the requested information, while refusing access to other information because it is not environmental information. The Council said that it would charge for the retrieval of information relating to that part of the request which sought copies of the minutes of meetings and estimated that the fee would be €500.

Internal Review

The appellant requested an internal review on 20 July 2015, emphasising that all of "the missing information" should be provided to him. He added that "when requests are refused there is an onus to suggest alternative methods to get information - this was not done." He complained about the Council's collective treatment of his 4 requests, saying that it was "most confusing and not in keeping with EC AIE's intentions". He said that he had submitted 4 individual AIE requests because he intended forwarding the responses separately to various EU and Irish State Agencies. He also complained that a charge of €500 was being used to deny him access.

The Council affirmed its original decision on 17 August 2015. It rejected the appellant's complaint that the requests should not have been treated collectively, and observed that the layout of the original decisions reflected the structure of the requests. It stood over the €500 charge, and said it was based on a rate of €20 per hour for the retrieval and analysis of documents.

Appeal

The appellant appealed to my Office on 16 September 2015.

Between that date and the date of this decision there were some developments. The appellant attended the Council's office by invitation on 11 and 14 December 2015, where (the Council said) "any information that he deemed relevant was available to copy". It also said that it had retrieved the minutes of meetings and, in a change of position, had provided the appellant with access to all of the minutes which contained references to waste-disposal, without charge. Later, the Council allowed the appellant to have access to the other minutes of meetings which it held, notwithstanding that it regarded them as outside the scope of the request. As a result, the dispute about a document-search fee was settled.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the Council's internal review decision and to affirm, annul or vary it.

In conducting my review I took account of the submissions made by the appellant and by the Council. 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; 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...