Office of the Information Commissioner

Chapter 2: Decisions

What follows is a summary of the decisions made in 2010. The full text of these can be found on my website www.ocei.gov.ie

CEI/09/0005 - Peter Sweetman & Associates and An Bord Pleanála (the Board) - Decision of 24 February 2010.

Background

On 23 March 2009, the applicant sought “digital copies of the transcripts of the hearing into Metro North… as soon as they are received by the Board”. The Board refused the request on the basis of Article (9)(2)(c) of the Regulations as the request concerned material in the course of completion. At the time of the request, the hearing into Metro North had not begun – it was scheduled to commence on 1 April 2009.

Findings

I was not satisfied that the Directive or the Regulations gave me the jurisdiction to direct a public authority to release information in records which had not been created at the time of the request. I also looked at the provisions of Article 4(1) and 4(2) and was satisfied that Article 4(1) would apply to the information sought in that it is required to be made available under another statutory provision.

Appeal decision

I found that the Board was justified in refusing the request but I varied the basis for the decision.

CEI/09/0007 Ms. Una Caulfield, Director, Residents for Realignment Ltd. and An Bord Pleanála (the Board) – Decision of 24 February 2010

Background

This case is very similar to CEI/09/0005 above. In this case, the applicant’s request of 5 March 2009 asked the Board “to broadcast the Oral Hearing into Metro North on the web, and to make transcripts of the hearing available online at the end of each day.” The Board refused the request on the basis of Article 9(2)(c) and that the Regulations did not apply to the request for webcasting.

Findings

As above, I was not satisfied that it was within my remit as Commissioner to direct the Board to arrange for webcasting of the hearing or to release transcripts which were not held by the Board at the time of the request. I noted in my decision that, subject to technical, operational and resource issues, there is nothing to prevent the Board from making the information sought available as soon as it becomes available or at some point earlier than it is required to be made available.

Appeal decision

I found that the Board was justified in its decision to refuse the request and varied the basis for the decision.

CEI/09/0006 Percy Podger and Associates on behalf of Hands Across the Corrib Ltd. and An Bord Pleanála (the Board) – Decision of 30 March 2010

Background

The applicant sought a transcript of the oral hearing into the Galway City outer bypass. The Board advised that “a transcript of the hearing has not and will not be made”. The Board provided an audio recording on compact disc (CD) of the proceedings of the hearing. The applicant advised this Office in his appeal that he had been unable to access the material on the CDs provided and it was not in the format requested. My Office examined the CDs and agreed that the material on them was not reasonably accessible, as the program required was not easily available and no instructions were provided as to how to access the material on the CDs. The Board was asked to provide new copies of the audio recordings to this Office and to the applicant. This Office was then able to access the material on the CDs.

Findings

Article 7(3) of the Regulations provides for information to be sought in a particular form or manner unless it is already available to the public or access in another form or manner would be reasonable. While the Board said that no transcript was made, it did give an under taking to provide one, referring to the audio recording. I did not consider it reasonable that the Board be required to prepare a transcript of a 21 day hearing where the hearing was held in public and an audio recording was available. Given the responsibilities placed on public authorities by the Directive and Regulations, I believe that there is also an onus on applicants to cooperate with the process. I believe it is unfortunate that the applicant did not attempt to resolve with the Board the difficulties he had with the original CDs and that he declined to confirm to my Office as requested if the fresh CDs provided were accessible.

Appeal decision

I found that the Board was not required in the circumstances of this case to provide a transcript which it did not hold. I found that in refusing the request, the Board should have given reasons why the information was being provided in another format and should have ensured easy accessibility of the information in the alternative format.

CEI/08/0006 Mr. John Colgan and Kildare County Council (the Council) – Decision of 15 March 2010

Background

The applicant requested information relating to the installation of a sewer across the Liffey (Salmon Leap) bridge at Leixlip. The Council refused the request saying it had no information as the installation of the sewer was a private agreement. The applicant appealed to my Office and the Council eventually identified some 53 files relating to the refurbishment of the bridge, though the material specifically relating to the sewer was limited.

In this appeal, I found it necessary to serve a notice under Article 12(6) of the Regulations on the Council as, despite repeated reminders, the Council did not respond adequately to my Office’s request for information to be provided to enable it to proceed with the appeal. This was the first and only time to date that I have found it necessary to invoke this provision of the Regulations.

The Council offered the applicant the opportunity to examine the files identified and this took some considerable period of time. Ultimately, I determined that the scope of the request was in fact quite narrow and as my appeal could only deal with material within the scope of the request, much of the material identified by the Council was not relevant to the appeal.

The issues to be determined included:

  • whether the information sought was held by or for the Council,
  • whether information existed which had not been identified or released by the
  • Council,
  • whether contractors engaged by the Council were public authorities for the purposes of the Regulations, and
  • whether the exceptions claimed by the Council in relation to a small amount of information were justified.

Findings

I found that the Council was not justified in its original decision to refuse the request on the basis that it did not hold any environmental information within the scope of the request.

I found that Article 7(5) of the Regulations allowed the Council to refuse a request in relation to further records (other than those made available during the review) on the basis that the information was not held by or for it.

I found that, for the purposes of this particular request, the contractors engaged on the project were not “public authorities” within the meaning of the Directive and the Regulations.

In relation to a small amount of information, I found that the Council’s decision to refuse access under Articles 8(a)(iv) and 9(1)(c) on the grounds that disclosure would adversely affect confidentiality was not justified in the circumstances of this case and directed the release of that information.

Appeal decision

I found that the Council’s original decision was not justified. I directed the release of a small amount of information within the scope of the original request and found that Article 7(5) applied to any further information which the applicant contended should be held by the Council.

Article 7(5) decisions – Information not held

As each of the following six decisions relate to Article 7(5) of the Regulations and were from the same applicant, Mr. Pat Swords, I have presented them as a group. In each case, I found that the public authority was justified in refusing access to information sought on the basis of Article 7(5) of the Regulations which provides for a public authority to refuse access to information sought on the basis that the information is not held by or for that authority. In each case, it is not in dispute that the information to which the Article 7(5) finding applied, if held, would come within the definition of environmental information in the Regulations and Directive.

Five of the cases dealt only with this provision of the Regulations, as follows:

  • CEI/09/0016 Mr Pat Swords and Department of Communications, Energy and Natural Resources – Decision of 28 Sept 2010 – aspects of renewable energy programme,
  • CEI/10/0002 Mr Pat Swords and An Bord Pleanála – Decision of 16 July 2010 – the Corrib gas pipeline and related planning matters,
  • CEI/10/0003 Mr Pat Swords and Industrial Development Authority (IDA) – Decision of 2 June 2010 – supporting information for comments made by the Chief Executive of the IDA about the wind energy programme,
  • CEI/10/0004 Mr Pat Swords and EirGrid PLC – Decision of 14 June 2010 - the official response of Eirgrid to the Poyry report, and
  • CEI/10/0008 Mr Pat Swords and University College Dublin (UCD) – Decision of 2 July 2010 – supporting information for comments by UCD academics about the Corrib gas pipeline and wind generation of electricity.

The final decision also dealt with the definition of environmental information.

CEI 09/0015 Mr Pat Swords and RTÉ – Decision of 10 May 2010

Background

On 26 October 2009, the applicant made a request for environmental information to RTÉ under the Regulations, seeking:

  1. the criteria RTÉ uses with regard to assessment of environmental impact, environmental pollution, acceptable risk, unacceptable risk, unacceptable hazard,
  2. the qualifications of RTÉ personnel who are reporting on matters relating to industrial development and implementation of the Environmental Acquis with regard to objectivity and accuracy,
  3. the names and qualifications of all RTÉ researchers who in the last 3 years have been responsible for editing and producing programmes relating to the Corrib Gas development in North West Mayo, and
  4. RTÉ’s policy with regard to its obligation under the Aarhus Convention for dissemination of environmental information.

The applicant made criticisms of RTÉ’s reporting of environmental matters, especially the coverage of the installation of the gas pipeline and terminal in Co Mayo.

The applicant’s position was that RTÉ is a public body under Directive 2003/4/ EC with obligations relating to dissemination of environmental information, such as detailed regulatory submissions prepared by the developer in the Corrib Gas case.

RTÉ’s position was that it is a public authority for the purposes of the Regulations, but that the request did not cover environmental information and in any event it did not hold the information sought at 1 and 4.

Findings

I found that RTÉ did not hold the information sought in 1 and 4. I concluded that the information sought in 2 and 3 does not fall within the definition of environmental information as set out in the Directive and Regulations.

Appeal decision

In this appeal, I also found that items 2 and 3 of the request did not come within the definition of environmental information.