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Pollution of the River Slaney featured among the commissioner's decisions. Alamy Stock Photo
failure to communicate

'Unacceptable' commitment by public bodies when faced with environmental information requests

The Commissioner for Environmental Information has reversed a ‘staggering’ number of environmental information decisions by public bodies.

PUBLIC BODIES, RANGING from An Bord Pleanála to Coillte and local councils, have shown an “unacceptable” lack of engagement with information laws, according to the Commissioner for Environmental Information.

There was also a “very worrying” level of understanding of public authorities’ obligations under environmental information law, with a “staggering” number of appeals resulting in the commissioner overturning decisions to refuse to release information on environmental issues.

The requests typically come from members of the public and campaigners seeking information on a variety of issues pertaining to potential environmental breaches.

In his annual report published today, Commissioner Ger Deering criticised public authorities’ compliance with Access to Information (AIE) laws, which provide a right of access to environmental information held by public authorities. 

The office carries out independent reviews of decisions made by public authorities on requests for environmental information. 

“The content and outcome of appeals received and closed by this office during 2022 show a very worrying lack of understanding of their statutory obligations in relation to AIE by some public authorities,” Deering said.

He also found “what appears to be a lack of commitment” to allowing access to environmental information which “should be made available”.

“It is quite worrying to note that in only four (3.1%) of the 129 appeals to this Office closed by formal binding decision in 2022, the decision of the public authority was affirmed,” Deering added.

ger-deering-ombutsman Commissioner for Environmental Information Ger Deering Barbara McCarthy Barbara McCarthy

In five of its decisions (3.9%), the decision was varied, meaning that some aspects were upheld and some not, while in 120 (93%) the decision by the public authority was annulled.

Describing this as a “staggering statistic by any measure”, Deering said it represents an increase of 36% on 2021, a year in which the annulment rate was “already a cause for concern” to the office.

“These annulments mean that in an overwhelming majority of cases we did not agree with any part of the public authority’s decision.

“This resulted in us directing the public authority to either undertake a fresh examination of the request or to release the information at issue. This exceptionally high level of annulments reflects the poor quality decision-making by the public authorities concerned.”

Last year also saw a record-high number of appeals made to the Commissioner for Environmental Information after refusals to release documents – the majority of which were related to forestry and tree felling.

Bodies criticised include An Bord Pleanála, the Department of Agriculture, Coillte and the National Transport Authority.

Deering said AIC regulations enable members of the public to know and understand what is happening in the environment around them, allowing them to participate in environmental decision-making in an informed manner.

“Delays at any stage of the AIE request process, or inappropriate refusal to release information, jeopardise the ability of requesters to participate in environmental decision-making,” he said.

Where previously the annual report was published in conjunction with the Annual Report of the Information Commissioner, Deering said it has become a stand-alone publication given the “growing importance” of providing access to environmental information, coupled with the “extraordinary growth” in requests for access to environmental information and the growth in appeals to the office.

2022 saw the highest number of appeals ever made to office at 369 cases – an increase of 151% on 2021. In 2022 the Commissioner’s Office also completed the highest number of cases in its history – 227, up from 83 in 2021. 

‘Limited’ response

In one case highlighted by Deering, his office reprimanded Wicklow County Council for how it handled a request from a local who had sought information about alleged pollution of River Slaney.

After failing to issue a decision on time on a request for information about the pollution of the River Slaney near the individual’s home, the council then refused access to the information in its decision following an ‘internal review’ of the file. 

Following an appeal by the local person, the commissioner’s office contacted Wicklow County Council so it could explain its decision, but found its response was “limited”.

“The council failed to respond to the commissioner’s requests for a more focussed submission and to clarify a number of specific issues,” the Commissioner said.

It later annulled the decision of the council and described the council’s conduct around the appeal as unacceptable.

Another case saw An Bord Pleanála criticised for withholding information on hearings for the contentious Galway Ring Road development, while the board was also slammed for refusing “without basis” a request for a digital copy of a recorded oral hearing held for a strategic housing development in Dublin.

When the Commissioner investigated, he found the planning authority were “far from ideal” in how it responded to requests, instead not responding at all.

“Unfortunately, the level of engagement with this office on the part of a number of public authorities, has not been satisfactory,” the commissioner said in a statement. 

“In many cases the actions of public authorities fail to reach the standards required by the AIE Regulations. Lack of clear communication and engagement has, in many instances, caused significant delays to the completion of appeals.”

It said these issues can be avoided in future through a combination of “enhanced cooperation” between public authorities and requesters, and later “between all relevant parties and this office”.

Elsewhere, the Department of Agriculture attributed the delay in processing one appellant’s request due to an “unprecedented number of AIE requests” it had received. 

While the commissioner accepted the challenges such requests create for public authorities, it found that the AIE process “does not afford the flexibility sought by the department”. The increase in AIE requests “did not justify the department’s failure” to have regard to the timeline specified by the appellant in the case, the office said.

There was also a significant increase in the number of ‘deemed refusals’ – cases where a public authority failed to make a decision on an AIE request on time. 

“It is inexcusable that some public authorities continually fail to provide responses to requesters of environmental information at one or both stages of the request,” the report commented. 

Increase in forestry requests

An “upward trend” was noted in appeals based on deemed refusals relating to public authorities dealing with forestry-related requests for environmental information. 

Over 69% of appeals, 257 in 2022, related to forestry information. These cases mainly involved Coillte and the Department of Agriculture, Food and the Marine.

Coillte came in for criticism for “months of correspondence” between it and the commissioner’s office to establish if the the State-owned commercial forestry business had carried out the appropriate searches in response to an AIE request. 

Deering called for greater engagement between public authorities and those requesting access to environmental information, and for public authorities to provide greater support and an increased priority for dealing with AIE requests where necessary.

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