Office of the Information Commissioner

Chapter 2: Decisions

In this chapter, I provide summaries of five decisions made in 2011. The full text of these decisions can be found on my website at www.ocei.gov.ie.

Case CEI/10/0018 – Mr.Cian Ginty and Irish Rail – Decision of 24 June 2011

Whether Irish Rail was justified in its refusal of access to environmental information sought by the applicant

In a request dated 11 June 2010, the applicant sought access to"a list of all current speed restrictions in the Irish Rail network, and any reports directly related to these speed restrictions". Irish Rail refused the request in its original and internal review decisions on the basis that the requested information was not "environmental information" and therefore not subject to the Regulations. In its internal review decision, Irish Rail described the information as being "purely of an operational nature, and by definition . . . of a transient nature".

During the course of the review, my Office took the view that the speed of a train is a "factor" which affects or is likely to affect the elements of the environment. My Office also considered that the impact of environmental factors could require the imposition of temporary speed restrictions, though it was acknowledged that this would be unusual. In my decision, I found that the information sought was environmental information in accordance with the Regulations. Moreover, I found no basis for withholding the information sought, particularly as information on train speeds could be said to relate to emissions into the environment.

I concluded that Irish Rail was not justified in refusing access to the information sought. I therefore annulled the decision of Irish Rail and directed the release of the information.

Case CEI/10/0016 – Mr. Pat Swords and Department of Environment, Heritage and Local Government (the Department) – Decision of 29 July 2011

Whether the Department was justified in its refusal of access to environmental information relating to foreshore licensing

In a request dated 27 June 2010, the applicant sought access to two items of information relating to a foreshore licence for the Dublin City Waste to Energy Project. The Department refused the request on 28 July 2010. The applicant made a request for internal review in relation to the second part of his original request, which was for "the official position of the Department with regard to the processing of licences and permits, such as a foreshore application, within an appropriate timeframe and the Prevention of Corruption (Amendment) Act, 2001". The applicant later clarified that his request "related to the timeframe for processing a foreshore licence". On 30 August 2010, the applicant appealed to my Office on the basis of the Department's failure to reply to his internal review request.

It was not in dispute that the information sought, if held, would come within the definition of environmental information. However, during the course of the review, the Department issued a statement to the applicant explaining, in relation to the time limits for processing an application for a foreshore licence, that "the Foreshore Act 1933 does not specify time limits within which licence applications must be processed and accordingly there are no records available which address this issue".

Article 7(5) of the Regulations is the relevant provision that applies where a public authority does not hold the requested information. I found no reason to doubt the Department's assurances that it did not create or receive the information sought by the applicant in relation to the timeframe for processing licenses. In the circumstances, I found that the information sought was not held by the Department and that Article 7(5) of the Regulations applied. I affirmed the Department's decision accordingly.

Case CEI/11/0003 – Mr. Pat Swords and Department of Communications, Energy and Natural Resources (the Department) – Decision of 28 October 2011

Whether the Department was justified in its refusal of access to environmental information sought relating to Minister Ryan's appearance on RTÉ's Prime Time programme on 14 December 2010 and his remarks on wind energy

The request in this case, dated 23 December 2010, was for environmental information relating to comments on wind energy made by the then Minister for Communications, Energy and Natural Resources, Eamon Ryan T.D. during his appearance on RTÉ's Prime Time programme on 14 December 2010. The Department identified four reports and provided a copy of these to the applicant. The applicant made a request for internal review on the basis that he was not satisfied that the information provided supported the remarks made by the Minister with regard to the price of electricity for consumers. In its internal review decision, the Department affirmed its original decision, saying that it had provided the applicant with the relevant material and had no further relevant information available.

Again, it was not in dispute that the information sought, if held, would come within the definition of environmental information. However, I found no reason to doubt the Department's assertions that all information relevant to the request had been identified and made available to the applicant. I observed that, while the information provided may not have met with the requirements of the applicant, the Department could not be expected to create information for this purpose under the Regulations.

I found that the information sought by the applicant was not held by the Department and that Article 7(5) of the Regulations applied. I affirmed the Department's decision accordingly.

Cases CEI/10/0005 and CEI/10/0007 – Mr. Gavin Sheridan and National Asset Management Agency, and Mr. Gavin Sheridan and Anglo Irish Bank – Decisions of 13 September 2011 and 29 September 2011, respectively

Whether the bodies concerned are public authorities within the meaning of the Regulations

The applicant made certain requests to the National Asset Management Agency (NAMA) and Anglo Irish Bank (the Bank) that were refused on the ground that the body concerned did not consider itself to be a "public authority" within the meaning of the Regulations. As noted in Chapter 1, where there is a dispute as to whether a body is a public authority, the person making the request has a right of appeal to my Office. Accordingly, the applicant appealed to me against the respective decisions of NAMA and the Bank.

The term "public authority" is defined in Article 3(1) of the Regulations and Article 2(2) of the Directive. Paragraphs (a) to (c) of Article 3(1) correspond to the definition in the Directive, but unlike the Directive, Article 3(1) then adds: "and includes" certain entities listed at subparagraphs (i) to (vii). At subparagraph (vi) is "a board or other body (but not including a company under the Companies Acts) established by or under statute". Subparagraph (vii), in turn, includes "a company under the Companies Acts, in which all the shares are held-(I) by or on behalf of a Minister of the Government".

Neither NAMA nor the Bank considered itself as meeting the criteria under paragraphs (a) to (c). In this context, the primary argument presented by the bodies was, in essence, that paragraphs (a) to (c) must be treated as qualifying conditions for meeting the public authority definition notwithstanding the use of the phrase "and includes" in the Regulations.

I noted that "includes", when used in a statutory definition, is ordinarily a word of expansion under Irish law. Thus, in light of the Irish case law on the matter, I found that the ordinary (or literal) meaning of "includes" has an extensive or expansive connotation requiring that what is governed by "includes" is to be added in or included. I also found that giving this meaning to "includes" results in the definition of public authority being entirely plain and unambiguous. I concluded that, in applying the Regulations, effect should be given to the plain meaning of "includes". Accordingly, I found that I must necessarily interpret the term "public authority" as defined in the Regulations as extending to all of the types of entities included in the list at subparagraphs (i) to (vii) regardless of whether such entities would also be captured by the categories at paragraphs (a) to (c).

Moreover, I was not persuaded by the arguments of NAMA and the Bank that reliance on the plain meaning of the word "includes", as used in the public authority definition in the Regulations, would give rise to an outcome at odds with the Directive. I noted that it is very arguable that the Directive encourages and enables Member States to take an expansive approach to what constitutes a "public authority". In the circumstances, I did not accept that paragraphs (a) to (c) of the public authority definition in the Regulations should be interpreted as restrictive criteria where a Member State has apparently chosen to take an expansive approach to the definition.

I found that NAMA is a public authority on the basis that it fits the criterion at subparagraph (vi) of the list of entities numbered (i) to (vii) which the definition of public authority "includes". Similarly, I found the Bank is a public authority on the basis that it fits the criterion at subparagraph (vii)(I) in the list of entities numbered (i) to (vii) which the definition of public authority "includes". I did not consider it necessary to determine whether NAMA or the Bank is captured also by any of the categories at paragraphs (a) to (c) of the definition. I annulled the respective decisions of NAMA and the Bank.

As noted in Chapter 1, my decisions have been appealed to the High Court.