The Right to access environmental information: The protracted reality

From our guest intern Patrick Barrett LLM:

Collins English Dictionary defines ‘expeditious’ as “quick and efficient”.  In today’s fast paced society, where people bemoan their lack of free time and hectic schedules, the expectation of expeditious service has become customary.

European law provides a right of access requests to environmental information held by public bodies. If an applicant is unhappy with the outcome of their request, they may seek an expeditious review from an independent adjudicator called the Commissioner for Environmental Information.

The Office of the Commissioner for Environmental Information (OCEI) is an independent statutory body, run by the Commissioner, Mr. Peter Tyndall. The OCEI is quick to point out what it is not on it’s website; it is not a court; it is not formal or adversarial; and it does not assist or advise the public in making Environmental Information requests.

Therefore, the appropriate question is; what does the OCEI do? More precisely, how has the Office performed over the previous four years? In comprehensively analysing the 77 decisions made between 2014 and 2017, the objective findings are as follows:

  • How long are reviews taking on average?

There are 77 listed decisions in the four-year period 5 of which do not record the date of appeal. Therefore, it is only possible to ascertain the length of time in 72 cases.

Length of times vary, from 34 days in Francis Clauson and The Commission for Energy Regulation (CEI/16/0022) to a protracted 959-day review in Lar McKenna and EirGrid (CEI/13/0015). Overall the median time calculated stands at 381 days per decision.

  • What type of information is being considered in appeals?

The breakdown of AIE Regulations considered by the Commissioner are as such:

Number of times considered:

Article 3 (Interpretation)                                                                    33

Article 7 (Action on request)                                                               28

Article 9 (Discretionary grounds of refusal)                                       24

Article 10 (Incidental provisions related to refusal)                           12

Article 8 (Grounds that, subject to Art.10, mandate a refusal)          11

Article 6 (Request for Environmental Information)                            6

Article 11 (Internal review of refusal)                                                 5

Article 4 (Scope)                                                                                  4

Article 12 (Appeal to Commissioner)                                                  1

Article 15 (Fees)                                                                                  1


  • What are the outcomes from appeals to the OCEI?

The outcome of decisions by the Commissioner are:

46 refusals to release information, 26 findings that information should be released, and 7 decisions stating the request be reprocessed.

The Commissioner has recorded 32 affirmations, 27 annulments and 18 variations.

  • How many are threshold decisions?

With regard to the 77 decisions 28 concern the issue of whether the information requested is environmental information.

Almost 1 in 8, i.e. 9 decisions, question whether the entity is within the scope of public authority. There are 2 decisions that relate to both definition of public authority and environmental information.

From our analysis the time to make decisions is decreasing. However it is doubtful that the timeframe meets the legal requirements of EU law. The Aarhus Convention clearly states at Article 9(1):

In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.

A cursory glance at the dictionary definition of expeditious may serve as a poignant reminder that applicants expect, and are entitled to, prompt and efficient recourse.