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Mr Donal O'Brolchain and Dublin City Council

Decision of the Commissioner for Environmental Information on an appeal made under article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations)

Case CEI/16/0027

Date of decision: 29 August 2017

Appellant: Mr Donal O'Brolchain (the appellant)

Public Authority: Dublin City Council (the Council)

Issue: Whether the Council's decision on the appellant's request for access to environmental information failed to take into account certain information held by or for the Council, and was therefore not made in accordance with the AIE Regulations. Whether it was reasonable for the Council to provide access to environmental information in a form other than that requested by the appellant.

Right of Appeal: A party to this appeal or any other person affected by this decision may appeal this decision to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Background

On 12 May 2016, the appellant made a request to the Council for access to traffic counts at 11 locations in Dublin, carried out in the years 2000, 2005, 2010 and 2015. The appellant requested access to this information in Annual Average Daily Traffic (AADT) format, with a breakdown of vehicle types. The appellant also requested information on the methodology of traffic counts carried out.

The Council did not make a decision on the request within one month, and so the request was deemed to be refused pursuant to article 10(7) of the AIE Regulations. The appellant sought an internal review of this deemed refusal on 21 June 2016.

In an internal review decision of 11 July 2016, the Council provided the appellant with access to one traffic count from 2005, relating to Malahide Road and Donnycarney Road in Dublin. The Council stated that, although a considerable number of searches were conducted to identify relevant information on traffic counts, only one traffic count was identified which met the appellant's request. On 8 August 2016, Mr O'Brolchain appealed to my Office against the Council's decision.

Scope of review

Under article 12(5) of the AIE Regulations, my role is to review the Council's internal review decision and to affirm, annul or vary it. In this instance, I am concerned with the question of whether the Council was justified in its decision that all relevant information had been disclosed to the appellant at internal review stage. In circumstances where a public authority grants access to certain information and contends that no further information is held, my practice is to review the adequacy of searches carried out by the public authority.

The AIE Regulations transpose Directive 2003/4/EC into Irish law. This Directive implements the first pillar of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance]; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

The Appellant's Position

The appellant submitted that he intentionally sought data from locations which were previously recorded as part of the Environmental Impact Statement for the Dublin Port tunnel. The appellant believed that the Council would have additional traffic counts for these locations.

The Council's Position

The Council submitted that numerous searches were carried out for information requested by the appellant. The Council explained that it carries out annual traffic counts at the canals each November, but does not conduct routine traffic counts at the locations referred to by the appellant. In a submission to my Office on appeal, the Council identified 32 additional traffic counts it holds, and offered to provide these to the appellant on request. The Council contended that no other relevant information on traffic counts is held by or for it.

The Council submitted that it does not record traffic data in AADT format, and so it released data to the appellant in the original format.

Analysis and findings

The information held by or for the Council

I accept the Council's submission that it does not conduct annual traffic counts at the locations requested. Notwithstanding this, it appears that the Council holds one-off traffic counts for the locations and years referred to in the appellant's request. One traffic count was provided to the appellant at internal review stage. The Council's internal review decision stated "only one set of records was identified which is relevant to your request". In its subsequent submission to my Office, the Council identified 32 traffic counts which it holds. My Investigator compared the traffic counts requested by the appellant with the list of 32 traffic counts identified by the Council at appeal stage. Eight of the 32 traffic counts correspond with the dates and locations specified in the appellant's AIE request. I have set out details of these eight traffic counts in a schedule to this decision. In circumstances where the Council's decision failed to account for the full extent of the information it holds, I am satisfied that the Council's internal review decision was inadequate.

In correspondence with my Office, the Council agreed to release the 32 traffic counts to the appellant, and invited him to specify the information he required. The Council does not appear to have disclosed any information to date. I am satisfied that eight of the 32 traffic counts held were within the scope of the original AIE request. I therefore vary the Council's decision on the appellant's AIE request. In particular, I require the Council to provide access to the eight traffic counts set out in the schedule to this decision.

The format of the information requested

Under article 7(3)(a)(ii) of the AIE Regulations, where a request is made to a public authority for access to environmental information in a particular form, access must be given in that form unless access in another form would be reasonable. In the present case, the appellant requested information in AADT format, (an annualised representation of traffic data). The information held by the Council is held in the form of short-term traffic counts. Traffic volumes are seasonally variable, and short-term counts such as those held by the Council may not be representative of average traffic on an annual basis. Further work would be required to estimate annualised data from short-term counts. There is no single method for estimating AADT using a short-term traffic data: different AADT figures could be arrived at depending on which factors are taken into account. I therefore consider it reasonable that the Council would not provide the traffic counts in estimated AADT format.

Under article 7(3)(b) of the AIE Regulations, where a public authority provides access to information in a different form to that requested, it must provide reasons for this decision in writing. In the present case, the Council informed the appellant that it did not hold the information in the format requested, however it did not explain to him why it would not convert the short-term traffic counts into AADT format. Accordingly, I am not satisfied that the Council's internal review decision met the requirements of article 7(3)(b) on this occasion.

Decision

In accordance with article 12(5) of the AIE Regulations, I have reviewed the Council's decision on the appellant's request. At internal review stage, the Council stated that it held one relevant traffic count, which it disclosed to the appellant. On appeal to my Office, the Council subsequently identified eight relevant traffic counts it holds, which were not accounted for in its internal review decision. The Council has indicated that it is willing to release these traffic counts. I therefore vary the Council's internal review decision and require it to provide the appellant with access to the eight traffic counts set out in the below schedule. For the purposes of article 7(3)(a)(ii) I consider it reasonable for the Council to provide access to the traffic counts in their current form, and not in AADT format, for the reasons I have stated above.

Appeal to the High Court

A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Commissioner for Environmental Information

Schedule of traffic counts to be provided to the appellant
Location Junction with Date of traffic count

1 Griffith Avenue Drumcondra Road 12/05/2000
2 Grace Park Road Griffith Avenue 06/10/2000
3 Grace Park Road Church Avenue 24/02/2005
4 Grace Park Road Richmond Road 08/03/2005
5 Grace Park Road Church Avenue 20/10/2000
6 Richmond Road Fairview Strand 16/10/2000
7 Malahide Road Donnycarney Road 18/10/2005
8 Malahide Road Clancarty Road 07/11/2005