Chapter 2: The year in review

Appeals and enquiries

During 2012, thirteen appeals were received by my Office. My Office recorded that four of these appeals involved a deemed refusal of the request concerned at the original and/or internal review decision-making stage. A deemed refusal occurs when the public authority fails to issue a decision on the request within the relevant time limit specified in the Regulations (usually one month).

Eleven appeals were closed during the year. Five formal decisions were issued; relevant summaries are set out in the chapter following. The one decision which has not been summarised was very similar in nature to case CEI/11/0009, in that it involved a dispute over whether any further relevant records pertaining to the Glanbia site in Waterford were held by or for Waterford City Council. As a general rule, appeal decisions are published in full on my Office’s website at www.ocei.gov.ie.

One case was deemed to have been withdrawn as settled once the information sought was released following my Office’s intervention. One appeal was withdrawn prior to acceptance, because the requested information was made available by the public authority, albeit belatedly. Another appeal was withdrawn following contacts with my Office. One other case was discontinued on the basis that, while the appellant was not satisfied with the outcome of the appeal, she accepted that no further relevant information was held by or for the public authority concerned and that nothing further would therefore be accomplished by pursuing the matter. A further two appeals were deemed to be invalid, in one case because no internal review request had been made and in the other because it was determined that this Office did not have the jurisdiction to review the matter concerned.

A little over half of the appeals arose from requests to local authorities and government departments. Other public authorities whose decisions were appealed included Ordnance Survey Ireland, the Marine Institute, Eirgrid Plc, and the National Transport Authority.

Sixteen cases were on hand at the end of the year. My staff recorded 30 general enquiries about the Regulations.

Article 12(6) of the Regulations

Article 12(6) gives me certain powers in dealing with an appeal. I may:

  • require a public authority to make environmental information available to me,
  • examine and take copies of environmental information held by a public authority, and
  • enter any premises occupied by a public authority so as to obtain environmental information.

I am pleased to report that I had no need to invoke this provision in 2012.

Issues arising in 2012

Last year, as in previous years, I commented on the low level of activity under the Regulations. In last year’s Report, I also highlighted some of the practical difficulties my Office has encountered in relation to the operation of the AIE regime. This year I wish to emphasise the lack of adequate resources available to my Office.

Although the OCEI is a legally independent Office, to date, it has not received any funding allocation from the State and must rely entirely on the resources that can be made available from the Office of the Information Commissioner (OIC). However, the OIC is stretched beyond its limits at present, with a significant backlog of cases already on hand, and is facing a significant increase in demand arising from the proposed Freedom of Information legislative changes. Moreover, while the number of AIE appeals received each year has remained quite low, the reviews tend to be complex or otherwise resource intensive.

Consequently, there generally are considerable delays in bringing AIE appeals to completion. One particularly complex case from 2010, involving the contract for the construction and operation of the Poolbeg incinerator, closed only recently by way of settlement, and another case from 2011 remains pending. I am aware that this situation is very unsatisfactory for members of the public who seek access to environmental information in order to participate more effectively in environmental decision-making, as envisioned by the Directive. The Director General of both Offices has written on my behalf to the Department of Public Expenditure and Reform requesting additional staff. For the time being, however, I simply am not in a position to devote more staff resources to processing AIE appeals.

I note that one measure that public authorities generally can take to reduce the administrative burden involved in dealing with AIE requests in the long-term is to comply with the information management requirements that are set out in Article 5 of the Regulations. As I observed in chapter 1, the scheme of the AIE regime envisions that the environmental information held by or for public authorities will be systematically organised, managed, catalogued, and at least ready for active dissemination to the public. Such information management practices would reduce the resources required of individual staff members in searching for and retrieving the environmental information requested. The active dissemination of the environmental information held by a public authority through publication on its website could obviate the need for a formal request in the first instance. I refer to this matter again in the next chapter in my summary of Case CEI/11/0009.

High Court and Supreme Court judgments

A party to an appeal to my Office or any other person affected by my decision may appeal to the High Court on a point of law from the decision. My decisions in two similar cases dealing with the scope of the public authority definition, CEI/10/0005 – Mr. Gavin Sheridan and the National Asset Management Agency, and CEI/10/0007 – Mr. Gavin Sheridan and Anglo Irish Bank, were appealed to the High Court in November 2011. The appeal brought by the National Asset Management Agency (NAMA) was heard for two days in July 2012. Subsequently, the Court required further submissions, and a further hearing was then held on 31 October 2012. Judgment was delivered on 27 February 2013, upholding my decision finding that NAMA is a public authority within the meaning of the Regulations.

There were no new High Court appeals taken against decisions of my Office in 2012. My Office’s appeal to the Supreme Court against the judgment of Mr. Justice O’Neill in An Taoiseach v. Commissioner for Environmental Information (Case CEI/07/0005) is still pending.

Statistics

  • Appeals received: 13

Appeals received

Appeals received
  • Appellants to CEI: 11

Appellants to CEI

Appellants to CEI

Outcome: of CEI appeals by year

  • 5 decisions
  • 2 invalid
  • 2 withdrawn
  • 1 settled
  • 1 discontinued *

* For consistency in recording outcomes, the ‘discontinued’ review is included in the ‘settled’ statistic in the bar chart below.

Outcome of CEI appeals by year

Outcome of CEI appeals by year
  • Deemed refusals (first and/or second stage)

Deemed Refusals

Deemed Refusals
  • Beginning with my next Annual Report, I propose to include in future Reports details of the public bodies where the decision was deemed to have been a refusal arising from the failure to respond within the deadlines specified in the Regulations at first and/or second stage.