Are Tweeted AIE requests possible? Commissioner says yes with some conditions

Can a request for access to environmental information be validly sent from an anonymous Twitter account?

That is the question the Commissioner for Environmental Information answered in a recent decision on a request from the Twitter account @windnoiseinfo to Wexford County Council (@wexfordcoco).

In making his decision the Commissioner ruled that he has the jurisdiction to formally review a request which is refused on the basis that a valid request has not been made. He further applied the Aarhus Convention directly in his interpretation of the scope of those formalities under the Irish AIE Regulations finding that unincorporated associations may make requests and that as long as a contact person is identified requests can in principle be initiated via social media and that a social media handle can constitute the address for the purposes of the AIE Regulations.

In September 2014 the applicant @windnoiseinfo published a public tweet mentioning @wexfordcoco and including an image file setting out the nature of the request.

There then followed several exchanges on Twitter with the public authority requesting that contact be made with it via email. The requester persisted and again via Twitter requested an internal review on the basis of a deemed refusal.

Following this request the public authority emailed the general email address of the requester refusing to carry out an internal review on the basis that a valid request had not been made.

On appeal the Commissioner first decided that he had the jurisdiction to make a decision. He reviewed the Irish AIE Regulations, Directive 2003/4/EC and the Aarhus Convention and found that under the access to justice provisions of the Directive the concept of “request” must be given a broader meaning than only those requests validly made under Article 6 of the regulations.

Relying on the Interpretation Act 2005 and the Electronic Commerce Act 2000, the Commissioner furthermore had no difficulty finding that electronic communications including communications containing information included by reference has legal effect and meets all the necessary conditions for a request to be “in writing”.

The public authority had argued that since the name, address and contact details of the requester had not been provided it could not establish whether the request was made by a natural or legal person and therefore it could not establish if the requester was entitled to make a request. The Commissioner observed that while both the Directive and the Regulations state that requests may only be made by natural or legal persons the Aarhus Convention defines the public as “one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups”. The Commissioner found that the AIE Regulations provide an exception to the common law rule that unincorporated associations do not have legal personality distinct form their members and that no purpose would be served by restricting the right of request to natural and legal persons only.

Turning to the meaning of “address” in the Regulations the Commissioner held that the purpose of providing an address was to facilitate a channel of communication between the requester and the public authority and that there is no requirement for the address to include a physical address since this could exclude those unable to provide a physical address or those who wished to communicate electronically. The Commissioner held that once a contact person has been identified any electronic means including social media accounts are valid communications channels for AIE requests.

The Commissioner, however found that the public authority was justified in refusing to process the request since no contact person had been identified and he therefore affirmed the decision of the public authority but varied the grounds.

Nevertheless this is an important decision for AIE in Ireland.

It provides for requests to be dealt with entirely electronically with no need for postal communications. This will facilitate services such as whatdotheyknow.com and asktheeu.org which are based on the open-source Alataveli platform.

It emphasises that not only is the right of request a broad right but equally the Commissioner’s jurisdiction is also broad since access to justice is an essential element of the AIE regime and the right to an administrative review of a decision by an independent body is part and parcel of the broad access right.

Finally this decision clearly shows the influence of the Supreme Court decision in National Asset Management Agency -v- Commissioner for Environmental Information [2015] IESC 51 where the Court held that the AIE Regulations must be interpreted purposefully in light of the Aarhus Convention.

The text of the decision is not yet on the OCEI website but may be downloaded here.

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