Paper delivered at UCC Law Department Conference
Open and Shut - Freedom of Information in Ireland
17 October, 1998

Freedom of Information Act, 1997:
Implications for Access to Information on the Environment1

Áine Ryall, Law Department UCC
e-mail:a.ryall@ucc.ie

Background

"Information on the environment" encompasses a wide range of information. Examples include planning files; Environmental Impact Statements; public and office files relating to applications for licences and consents under pollution control legislation; monitoring data files; and prosecution files.2

Individuals and environmental groups must have ready access to information on the environment if they are to play an effective role as environmental watchdogs. I say "ready" access because, as you will be aware, where access to information on the environment is delayed, the right of access may well turn out to be meaningless. Information on the environment generally has a very short shelf life.

When it comes to challenging decisions of public bodies, an effective right of access to information is critical. There are notoriously tight statutory time limits within which challenges to decisions of An Bord Pleanála and the Environmental Protection Agency (EPA) must be instituted. In the case of An Bord Pleanála and the EPA, judicial review proceedings must be instituted within the period of two months commencing on the date on which the decision of the public body was given. The courts have interpreted these time limits strictly.3

It is against this background that we must consider the right of access to information on the environment. In particular, given the tight time limits mentioned above, it is critical that requesters have access to a speedy and effective remedy where access to information is delayed or denied.

FOI Act, 1997 - issues for access to information on the environment

The Freedom of Information Act, 1997 (FOI Act) raises a number of interesting issues in the environmental context. Prior to the enactment of the FOI Act there was already in place a wide range of legislation providing for access to information on the environment. In addition to specific rights of access set out in planning and pollution control legislation, the Access to Information on the Environment Regulations, 19984 provided for a general right of access to information on the environment. I will refer to these regulations as the AIE regulations 1998 in this paper. The AIE regulations 1998 are the most recent attempt to implement Ireland's obligations under a European Directive on access to information on the environment (Directive 90/313/EEC).

The various rights of access noted above remain in place notwithstanding the advent of the FOI Act. Predictably, the existence of a number of distinct legislative measures providing for varying degrees of access to information on the environment has led to uncertainty and confusion in practice. Further complications arise by virtue of the fact that Directive 90/313/EEC satisfies the criteria for direct effect. This means that the Directive can be invoked directly by individuals and environmental groups against the State and emanations of the State (e.g. local authorities, An Bord Pleanála and the EPA). In practice, many request for access to information on the environment are made pursuant to the Directive rather than the AIE regulations. This is because the Directive provides for a better quality of access as the AIE regulations do not correctly transpose a number of key provisions of the Directive. In a separate development, Ireland recently signed an important international Convention, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters5. This Convention adds yet another dimension to the existing mishmash of European and domestic legislation governing access to information on the environment.

At this point I should say that I do not envy the Department of the Environment and Local Government (DOELG) who have the difficult task of implementing Ireland's obligations under Directive 90/313/EEC and, more recently, the Convention mentioned above.

My paper will focus on the practical difficulties which arise where a number of distinct rights of access operate side by side. In particular, I will consider the uneasy relationship between the AIE regulations and the FOI Act. The nature of the relationship between these two pieces of legislation is likely to come into sharp relief as and from next Wednesday when local authorities will be subject to the FOI Act. Since May 1993, local authorities have dealt with a large number of requests for access to information on the environment under the AIE regulations. The AIE regulations, and the conservative approach of local authorities to requests for access under these regulations, have been the subject of sustained criticism. The FOI Act has been superimposed on the inadequate system of access provided under the AIE regulations.

Two important issues arise for discussion:

1. How does the FOI Act interact with the AIE regulations? and

2. Does the FOI Act strengthen access to information on the environment?

FOI Act, 1997 Section 46(2)

Section 46(2) is a critically important provision of the FoI Act. The section provides as follows:
 

46 (2) ... this Act does not apply to -

(a) a record that is available for inspection by members of the public whether upon payment or free of charge, or

(b) a record a copy of which is available for purchase or removal free of charge by members of the public,

whether by virtue of an enactment (other than this Act) or otherwise.

Section 46(2) is designed to clarify the relationship between the FOI Act and other statutory rights of access to information. The section purports to exclude from the scope of the FOI Act records which are already available to the public (whether for inspection or purchase) by virtue of enactments other than the FOI Act. As noted above, before the introduction of the FOI Act a number of distinct statutory provisions provided for specific rights of access to information on the environment. For example, pursuant to planning regulations, files relating to appeals received by An Bord Pleanála after 10 April, 1995 are available for public inspection at the offices of the Board. Copies of documents from these files (except plans, drawings or photographs) are also available for purchase at reasonable cost.6 As these records are already "available" within the meaning of section 46(2), the FOI Act does not apply to requests for such records. Similarly, other records which are readily available for inspection or purchase pursuant to planning and pollution control legislation are also excluded from the scope of the FOI Act. It is noteworthy that the existence of a mere right to inspect a record under another enactment is sufficient to exclude the application of the FOI Act.

Predictably, section 46(2) also operates to exclude from the scope of the FOI Act records which are already routinely made available by public bodies. Examples of such records include Annual Reports of public bodies; information leaflets and guides distributed by the DOELG and the Environment Information Service (ENFO) and other public bodies.

The rationale behind the exclusions set out in section 46(2) is to avoid duplication and overlap between the FOI Act and other legislative measures which provide for rights of access to information. In the context of information on the environment, the AIE regulations 1998 provide for a general right of access to information on the environment. It is necessary to consider the scope of this right of access before turning to examine the relationship between the AIE regulations and the FOI Act.

Access to Information on the Environment Regulations, 1998 (AIE regulations 1998)

The AIE regulations 1998 provide for a general right of access to information on the environment held by public authorities. The regulations are designed to complement existing provisions in planning and pollution control legislation providing for access to information on the environment. The right of access under the 1998 regulations is not automatic. It is necessary to apply, in writing, to the public authority in question. The regulations provide for both mandatory and discretionary exemptions to the right of access.

The 1998 regulations are the latest in a series of regulations which purport to implement Ireland's obligations under Council Directive 90/313/EEC. The original AIE regulations came into effect in May 1993.7 The many shortcomings which came to light in the day to day operation of the 1993 regulations are well documented.8 Sustained criticism of the 1993 regulations prompted the DOE (as it then was) to introduce new regulations in June 1996.9 The 1996 regulations (which repealed and replaced the 1993 regulations) purported to address a number of the deficiencies identified in the 1993 regulations. The changes effected by the 1996 regulations included: an attempt to clarify the definition of the public authorities which are subject to the regulations; slight revision of the discretionary grounds for refusing access; the time limit within which public authorities were obliged to respond to requests was reduced from two months to one month.10 In practice, however, the changes effected by the 1996 regulations were little more than cosmetic.11

The AIE regulations 1998 re-enact the 1996 regulations practically verbatim. However, a new article has been added which attempts to clarify the relationship between the general right of access set out in the 1998 regulations and specific rights of access provided under planning and pollution control legislation. Curiously, the DOELG did not use the opportunity afforded by the introduction of the 1998 regulations to clarify the relationship between these regulations and the FOI Act. When the original AIE regulations were made in 1993, detailed guidance notes were issued by the DOE. No new guidance notes have been issued to date. The shortcomings identified in the original 1993 regulations persist notwithstanding the enactment of new regulations in 1996 and 1998. Specific criticisms of the AIE regulations include: uncertainty concerning the public bodies which are subject to the regulations; the wide ranging nature of the exemptions to the right of access; no express right to a copy of information requested; lack of any guidance as to what constitutes a "reasonable charge"; and the lack on an effective appeals mechanism where access to information in delayed or denied. It is important to note that in practice many requests for access to information on the environment held by public bodies are made under Directive 90/313/EEC as the quality of the right of access under the Directive is broader than that provided for in the implementing regulations.

The issue of appeals against decisions of public authorities under the AIE regulations merits further consideration. The regulations themselves do not provide for a distinct appeals system. General administrative and judicial remedies therefore apply. In certain cases, an aggrieved applicant may complain to the Ombudsman. However, this option is only available in the case of public authorities which come within the Ombudsman's jurisdiction. It is noteworthy that An Bord Pleanála and the EPA, do not fall within the Ombudsman's remit. The only remedy available where these public bodies refuse to release information under the AIE regulations is judicial review. This remedy lies beyond the means of many individuals and environmental groups. Judicial review is also an unpredictable and slow process. It is clearly arbitrary that a less satisfactory appeals process should apply depending on which public authority holds the information requested under the AIE regulations.

In light of the many serious shortcomings identified in the AIE Regulations 1998 it is important to consider whether an individual or environmental group can make a request for access to information on the environment under the FOI Act rather than the 1998 regulations.

Relationship between FOI Act and the AIE regulations The relevant provision here is section 46(2) of the FOI Act. As noted above, section 46(2) provides that the FOI Act does not apply to information which is "available" to members of the public for inspection or purchase by virtue of other legislative provisions. Relying on section 46(2), the DOELG argues that "information on the environment" which is covered by the terms of the AIE regulations does not fall within the ambit of the FOI Act. In the Department's view, requests for access to information on the environment must be processed under the AIE regulations.12 This interpretation of section 46(2) appears to be shared by the EPA.13

In practice, this interpretation will necessitate public bodies deciding as a preliminary matter whether information which is the subject of a request under the FOI Act is, in effect, "information on the environment". If the information requested falls within this definition, then, following from the Department's interpretation of section 46(2), such a request is outside the scope of the FOI Act and must be processed under the AIE regulations.

If this interpretation of section 46(2) is accepted, information on the environment will be subjected to a less favourable access regime than other categories of official information. The FOI Act exhibits many significant advantages over the AIE regulations.14 There is greater clarity regarding the public bodies covered by the FOI Act; the exemptions under the FOI Act are less restrictive, and a number of the exemptions incorporate a "public interest" test. The FOI system sets out detailed provisions relating to charges. The most important advantage of the FOI Act over the AIE regulations, however, is the appeals mechanism provided under the Act.

Where a request for access to a record under the FOI Act is denied, the requester may (in certain cases) apply for an internal review of the decision. If the outcome of an internal review is unfavourable, the requester has the option of appealing to the Information Commissioner. This appeals process has a number of very practical advantages over the traditional remedy of judicial review:

1. A requester is not required to pay a fee in order to invoke the appeals process.

2. There is a presumption that a decision to refuse a request for access was not justified unless the head of the public body concerned shows to the satisfaction of the Commissioner that the decision was justified. See FOI Act, 1997 section 34(12)(b)

3. The Commissioner is required, in so far as is practicable, to make a decision on an appeal within a certain time-frame. See section 34(3).

As noted above, in certain cases an aggrieved applicant under the AIE regulations has the option of making a complaint to the Ombudsman. The Ombudsman has played a very active role in dealing with complaints concerning the AIE regulations. Frequently, the Ombudsman's intervention has prompted a change of heart on the part of local authorities. However, this process has proved to be painstakingly slow. In contrast to the Ombudsman, the Information Commissioner is required to make a decision on an appeal within a certain time-frame. Furthermore, determinations of the Commissioner are binding whereas the Ombudsman may make recommendations only.

Given the many significant advantages of the FOI Act over the AIE regulations, (especially in the context of appeals) individuals and environmental groups will be anxious to see their requests for access processed under the FOI Act. As noted above, the DOELG argues that section 46(2) of the FOI Act operates to exclude such requests from the scope of the Act.

It is worth considering this argument in some detail. In my opinion, the DOELG's interpretation is open to question. It is not clear from the wording of section 46(2) whether a person seeking access to information on the environment is excluded from making a request under the FOI Act. Section 46(2) refers to information that is "available" by virtue of other enactments. As noted above, there is no automatic right of access under the AIE regulations. A request for access must be made in writing to the relevant public authority. A public authority may refuse to accede to a request based on either the mandatory or discretionary exemptions set out in the AIE regulations. Quaere therefore whether information falling within the terms of the AIE regulations is "available" within the meaning of section 46(2). In my view it is not.

Section 46(2) is aimed at excluding from the scope of the FOI Act records which are routinely available under other statutory provisions. This interpretation is reinforced by reference to the explanatory memorandum to the FOI Bill which refers to information which is "publicly available". Examples of such records include planning applications which may be inspected at the office of the relevant local authority and An Bord Pleanála files relating to appeals received after 10 April, 1995 which may be inspected at the offices of the Board on request. These files are clearly, "available for inspection" within the meaning of section 46(2). Contrast the position under the AIE regulations, where an application for access is required. A public authority has, in effect, two months to respond to such an application and may refuse to accede to a request on the basis of the exemptions set out in the AIE regulations. I seriously doubt whether this is the situation contemplated by the exclusion set out in section 46(2).

The Department's interpretation of section 46(2) is likely to be challenged before the Information Commissioner. I anticipate that the Department's view will be rejected.

An important practical issue is whether a person whose request for access under the AIE regulations has been refused may make a subsequent application under the FOI Act. Clearly, where a request for information under the AIE regulations is refused, the information in question is not "available" within the meaning of section 46(2). It would appear, therefore, that a subsequent application under the FOI Act is permissible. In practical terms however, the delay involved in making two successive applications may well result in the information requested being obsolete by the time it is eventually released (if it is released at all).

Conclusion

My advice to a someone seeking access to information on the environment would be to make two separate requests under both Directive 90/313/EEC and the FOI Act (assuming, of course, that the public body in question is covered by the FOI Act).

It is fair to say that as things currently stand, the law on access to information on the environment is puzzling. When local authorities come within the scope of FOI on 21 October, both local authority personnel and people seeking access to information on the environment from local authorities will be faced with a mishmash of legislation providing for different rights of access to information. This situation is far from user-friendly.

In the meantime, the DOELG has stated that it will closely monitor the side by side operation of the AIE regulations and FOI. Local authorities have been asked to alert the Department to any practical difficulties which arise in this regard. Options for a "formalised administrative appeals system" which would apply to requests for information under the AIE regulations are under consideration.15

A simple, interim solution to two of the most glaring inconsistencies between the AIE regulations and the FOI Act would be to extend the FOI charging system and the FOI appeals mechanism to requests for information under the AIE regulations. With this interim measure in place, the DOELG could then seek the views of interested parties to consider how best to streamline current access regimes, taking into account obligations arising under EC law and the recent ECE Convention.

*****

Other related issues meriting further discussion

1. Inconsistencies in charging provisions

Example 1

An Bord Pleanála currently charges 10p per photocopied sheet in relation to requests for access to planning appeal files under the relevant planning regulations. In sharp contrast, the maximum charge per photocopied sheet in the case of a request under the FOI Act has been prescribed at 3p. As noted above, section 46(2) operates to confine requests for access to An Bord Pleanála files to the access regime created under the relevant planning regulations. Such requests therefore do not enjoy the benefit of the ceiling which has been prescribed for fees in the case of requests under the FOI Act.

There appears to be no justification in principle or in policy for levying different charges depending on the legal basis under which information is required to be made available. It is submitted that the rates of charge prescribed under the FOI Act should also be applied to other statutory rights of access to information on the environment. Such a measure would serve to eliminate pointless inconsistencies in the charging policies of public bodies.

Example 2

The EPA currently charges 10p per photocopied sheet in respect of each page copied from its section 16 reference book. Section 16 of the FOI Act does not specify any maximum charge in respect of the section 16 reference book or extracts therefrom. Note that regulations made pursuant to section 47(3) only apply in relation to requests under section 7.

2. The right to a copy v. the right to simply inspect a document or record

There is no express right to a copy of the information requested under the AIE regulations. Directive 90/313/EEC however, arguably creates a right to a copy of the information requested. Article 1 speaks of "dissemination" of information; Article 3(1) requires Member States to define the practical arrangements under which information "is effectively made available". The wording of Articles 3(2), 3(3), and Article 5 of the Directive contemplate that information will be "supplied" to the applicant.

Section 12 of the FOI Act governs the manner of access to records under the FOI Act. Access may be granted in a number of different forms. See section 12(1). If a requester requires access in a particular form, the he/she is required to specify that form in the request for access.

The Act does not provide for a right of access to a record in the form requested. The head of a public body may decide to grant a request for access in a manner other than that requested in certain circumstances. See section 12 (2). The decision to grant a request for access in a form other than that specified is open to review by the Information Commissioner.

Consider whether there is greater provision for a right to a copy of the information requested under the FOI Act than under the Directive and the AIE regulations.

3. Treatment of requests for access by public bodies

Consider the situation where a request is made to a public body under the FOI Act and the public body decides to deal with the request as if it were a request under the AIE regulations.

Is this practice permissible and, if so, what are the practical implications of such a practice for access to information on the environment?

Endnotes

1 For a more detailed discussion of the issues addressed in this paper see Ryall, "Access to Information on the Environment" (1998) 5 (2) Irish Planning and Environmental Law Journal 48 and Ryall, "The Irish Ombudsman and Access to Environmental Information", paper delivered at the W.G. Hart Legal Workshop, Institute of Advance Legal Studies, University of London, July 9, 1997.

2 "Information on the environment" is defined in a number of relevant legislative provisions. See Environmental Protection Agency Act, 1992 section 110(3); Council Directive 90/313/EEC on the freedom of access to information on the environment, OJ L158/56 of 23 June, 1990, Article 2(a). See also Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, United Nations Economic Commission for Europe, June 1998, Article 2(3).

While at first glance, deciding what is and is not embraced by the term information relating to the environment appears reasonably straightforward, it can be controversial. For example, the Annual Report of the Ombudsman for 1994 contains a note of an investigation by the Ombudsman where a local authority argued that drinking water analysis was not included in the definition "information relating to the environment". Predictably, the Ombudsman did not accept this argument. See Annual Report of the Ombudsman, 1994, pp. 46-50.

3 See KSK Enterprise Ltd. v. An Bord Pleanála [1994] 2 IR 128 and Ni Eili v. Environmental Protection Agency and Roche (Ireland) [1997] 2 ILRM 458.

4 The full title of these regulations is the European Communities Act, 1972 (Access to Information on the Environment) Regulations, 1998 (SI No. 125 of 1998). The 1998 regulations repeal and replace the Access to Information on the Environment Regulations, 1996 (SI No. 185 of 1996).

5 United Nations Economic Commission for Europe, Fourth Ministerial Conference "Environment for Europe", Arhus, Denmark, 23-25 June, 1998.

6 See Local Government (Planning and Development) (No. 2) Regulations, 1995 (S.I. No. 75 of 1995). See further An Bord Pleanála section 15 reference book, 30 July, 1998.

7 Access to Information on the Environment Regulations, 1993 (SI No. 133 of 1993).

8 See Access to Information on the Environment: A Review (DOE, 1995) pp. 8-9; Access to Environmental Information: A Report on the Implementation of EC Directive 90/313/EEC in Ireland (2nd ed.) (Earthwatch, 1994) and Hallo (ed.) Access to Environmental Information in Europe: The Implementation and Implications of Directive 90/313/EEC (Kluwer, 1996) Chapter 7 by J. Wates.

9 Access to Information on the Environment Regulations, 1996 (SI No. 185 of 1996).

10 In certain circumstances, a public authority may take up to two months to respond to a request for information. See 1996 regulations, article 9(2) now repealed and replaced by article 10(2) of the 1998 regulations.

11 Hallo (ed.) Access to Environmental Information in Europe: The Implementation and Implications of Directive 90/313/EEC, above n. 8.

12 See Review of the implementation of Council Directive (90/313/EEC) of 7 June 1990 on freedom of access to information on the environment : Report to the Commission of the European Union (DOE,1997) pp.17-19; Guide to the Functions and Records of the Department: Freedom of Information Act, 1997 Section 15 Reference Book (DOELG, 1998) p.1 and DOELG, Circular EPA 6/98, May 1, 1998 para. 5.

13 Freedom of Information Act, 1997: Section 15 Reference Book (EPA, 1998) p. 4.

14 The following is simply a general statement of the advantages of the FOI system over the AIE regulations. It should be noted that there are many inconsistencies between the two access systems. See further McDonagh, Freedom of Information Law in Ireland (1998) pp. 404-425.

15 See DOELG Circular EPS 6/98 para. 6, May 1, 1998.
 

17 October, 1998
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