Wind Noise Info and Wexford County Council

• Case Number: CEI/14/0017
• Decision Date: 21 August 2015
• Issuer: Wexford County Council
• Applied Rules: Art.6(1)(a) Art.6(1)(c), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Wind Noise Info and Wexford County Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0017

Published on 21 August 2015

1. Decision:
2. Background
3. Scope of Review
4. Decision
5. Appeal to the High Court

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (The Regulations)

Appellant: Wind Noise Info, (Twitter account @windnoiseinfo) (The Appellant)

Public Authority: Wexford County Council (The Council)

Issue: Whether the Council was justified in finding that a request made by electronic means, in the form of a message sent on a social media website, was invalid under Article 6(1) of the Regulations. Whether the Council was justified in finding that an electronic correspondence address was insufficient for the purpose of making a valid request under Article 6(1) of the Regulations. Whether the Council was justified in finding that the name of an unincorporated entity was insufficient for the purpose of making a valid request under Article 6(1) of the Regulations.

Decision:

In accordance with Article 12(5), the Commissioner reviewed the decision of the Council. The Commissioner affirmed the decision of the Council that the request was not valid; however he varied the basis for the decision. The Commissioner agreed with the Council's finding that the request was invalid as it did not disclose the name of a natural or legal person. The Commissioner's decision differed in finding that social media correspondence was a valid electronic means by which a request could be made under Article 6(1)(a) of the Regulations, and in finding that a social media website could constitute a valid address for the purpose of Article 6(1)(c) of the Regulations. The Commissioner affirmed the practice of recognising associations, organisations, and groups where details of representative members are provided, but found that no representative had been nominated in this case.

Background

On 12 September 2014 the appellant, in a public message sent from the "@windnoiseinfo" Twitter account, published a request under the Regulations. This message was addressed to the Council's Twitter account (@wexfordcoco), and attached an image file containing two paragraphs of text setting out the nature of the request.

The appellant is an internet-based environmental group, with four publicly visible elements; a Twitter account, a Facebook account, a website, and an email address. Twitter is an online social networking service that enables users to send and read short messages. Twitter messages are limited to 140 characters of text. Messages may include images, videos, and web-links. Twitter messages may be addressed to other users publicly as a form of correspondence. Twitter also has a private "direct message" function. The appellant's website contains geospatial depictions of noise emanating from wind farms. In addition to noise mapping activities, the appellant maintains a social media presence on Twitter and Facebook, where it comments on the wind energy industry, and engages in discussions with other users of social media. The appellant is not an incorporated body, and does not publicly acknowledge individual members.

This request related to information "as to how the map tweeted by [a third party Twitter account] was calculated and arrived at". The Council replied by Twitter, in a message sent two hours after the initial request and addressed to the appellant, stating "can you forward your request to environment@wexfordcoco.ie". Between 12 September and 15 October 2014, there were a number of exchanges on Twitter between the Council and the appellant concerning the initial request. In every instance, the Council stated that the appellant should contact the Council's environment section directly in order to make a request, and provided contact details. In a Twitter post of 13 October 2014, the appellant sought an internal review of the decision by the Council not to process the initial request.

In an email of 22 October 2014 sent to the appellant's publicly available email address, the Council stated that it did not regard the request of 12 September as valid because the appellant's "name and address and other contact details" had not been provided. The Council stated that these details were necessary to establish whether the appellant was a natural or legal person, and therefore a valid applicant under the Regulations. The Council cited Article 6(1) of the Regulations and Article 2(4) of Directive 2003/4/EC (the Directive) as authority for this position. The Council went on to state that it considered Twitter's 140 character limit to be impractical for the purpose of making requests under the Regulations, and advised that requests were to be made by email. On this basis the Council did not recognise the Twitter request of 12 September, nor did it acknowledge the subsequent request for internal review.

Scope of Review

Jurisdiction of the Commissioner to review decisions concerning Article 6 of the Regulations.

Before examining the substantive issues in this case, I consider it necessary to establish whether the Regulations or the Directive allow me to conduct a review of refusals made on the basis that a request was not accordance with Article 6 of the Regulations. In this case, the Council assessed the request of 12 September 2014, and concluded that it was not made pursuant to Article 6(1) of the Regulations. This decision was not notified to the appellant until 22 October, more than five weeks later, and after a request for internal review had been made. Article 3 of the Regulations defines the word "request" for the purposes of the Regulations as "a request for environmental information pursuant to Article 6". Accordingly, references to a "request" in the Regulations are to be construed as referring to requests which conform to the requirements of Article 6(1), unless the context suggests otherwise.

Article 6(1) of the Regulations states:

6. (1) A request for environmental information shall --

(a) be made in writing or electronic form,

(b) state that the request is made under these Regulations,

(c) state the name, address and any other relevant contact details of the applicant,

(d) state, in terms that are as specific as possible, the environmental information that is the subject of the request, and

(e) if the applicant desires access to environmental information in a particular form or manner, specify the form or manner of access desired.

The scope of matters which are subject to internal review is set out in Article 11(1) of the Regulations as follows:

11. (1) Where the applicant's request has been refused under article 7, in whole or in part, the applicant may, not later than one month following receipt of the decision of the public authority concerned, request the public authority to review the decision, in whole or in part.

This scope is further expanded by Article 11(5) of the Regulations, which states

(5) In sub-article (1) and article 12(3)(a), the reference to a request refused in whole or in part includes a request that --

...

(c) has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive (including the ground that the amount of the fee charged under article 15(1) is excessive).

My jurisdiction to review matters on appeal applies where a decision has been affirmed at internal review stage under Article 11, or where no decision has been notified to an applicant pursuant to Articles 10(7) and 12(4)(a)(ii) of the Regulations.

Directive 2003/4/EC

Directive 2003/4/EC (the Directive) implements the first pillar of the 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"). The Directive is transposed into Irish law by the Regulations. In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51, (discussed in detail below), the Supreme Court held that the interpretation of a transposing instrument must include analysis of the purpose of the underlying Directive. Recital 19 of the Directive states applicants "should be able to seek an administrative or judicial review of the acts or omissions of a public authority in relation to a request". Article 6 of the Directive provides for access to two stages of review. Article 6(1) sets out the scope of the first stage of review as follows:

"Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive."

The above article creates a broad scope for review of requests which is not limited to formal refusals and not qualified to any extent to say that member states may exclude access to review procedures where formalities have not been met.

Article 11(5)(c) of the Regulations transposes the content of Article 6 of the Directive, and provides that requests which have "otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive" may be construed as requests for the purposes of Article 11(1), and...