Irish legislation specifically provides for access to and provision of environmental information. There are a number of statutes and statutory instruments which provide for varying degrees of access to the following types of information (for relevant legislation see Box 1): (i) private records; (ii) records held by public authorities; (iii) planning registers, files and development plans; (iv) pollution registers,1 files, databases and management plans; (v) waste registers, files, records and management plans and (vi) environmental information.
General Information Versus Environmental Information under Irish Law
With respect to information in general, records held by public authorities are governed by the Freedom of Information Act, 1997. However, where records are available for copy or inspection by virtue of an enactment or otherwise, the 1997 Act does not apply (see section 46[2]). This would appear to exclude information relating to the relevant procedures under iii-v in the box below.
Moreover, it is the view of the department of the environment that "environmental information which is available under the Access to Information on the Environment Regulations, will not be covered by the Freedom of Information legislation" (see Department of the Environment Review of the implementation of Council Directive [90/313/EEC] of June 7, 1990 on freedom of access to information on the environment: report to the Commission of the European Union [undated], p. 17). This is the department's interpretation of the law. It should be pointed out that there are other possible interpretations which would suggest that section 46(2) does not exclude 1998 Regulations as "environmental information." However, as this is a matter of legal speculation, this report will proceed on the basis that the procedure for access to environmental information is to be effected, from the official standpoint, through the 1998 Regulations and the various procedures in the legislation specified at iii-v in Box 1.
| BOX 1: Main Legislation Regarding Information |
|---|
|
The Specific Case of Environmental Information
The principal piece of legislation relating to environmental information is the European Communities Act, 1972 (Access to Information on the Environment) Regulations, 1998. Other limited environment-related procedure-specific provisions on planning, pollution and waste in the statutes are mentioned at iii-v in the above table. Under Irish law there is a legal distinction made between information available under the 1998 Regulations and information available under other planning and environmental legislation. In particular, Article 5(1) provides that the 1998 Regulations do not apply to "information which, under any statutory provision apart from these regulations, is required to be made available, whether for inspection or otherwise, to persons generally." However, with respect to specified planning and environmental information access provisions3, both these and the 1998 Regulations are deemed to be operable [see article 5(2)]. By way of clarification, the department of the environment in its access to information on the environment: guidance notes (undated) asserts that planning and environmental registers and the like are "consistent and readily understood" by the public and "practical and easy to administer" (see p. 2). The department indicates that "existing arrangements will continue to operate as before," for example those for inspection of planning applications and files (see pp. 2 and 3). The impact of article 5(2) of the 1998 Regulation is addressed in a department circular in the following terms: "the effect of the new provision will be to ensure that, while those provisions concerning immediate access/public inspection remain in force, the general provisions on access to information will also apply." (Department of Environment and Local Government, Circular Letter EPS 6/98 of May 1, 1998, European Communities Act, 1972 [Access to Information on the Environment] Regulations, 1998).
"Environmental information" is not defined in the 1998 Regulations, nor do these regulations refer to a definition in other legislation, as was the case with previous access to environmental information regulations. Section 110(3) of the Environmental Protection Act, 1992, which was the substantive statutory basis for the since revoked Access to Information on the Environment Regulations, of 1993 and 1996, defines "information relating to the environment" as any available information in written, visual, aural or database form on the state of water, atmosphere, soil, fauna, flora, land and natural sites, and on actions (including those which give rise to nuisances such as noise) or measures adversely affecting, or likely to so affect, these and on actions or measures designed to protect these, including administrative measures and environmental management programs.
As can be seen from the text, this definition includes information about state and activities related to nature (i.e. fauna, flora, landscape, natural sites, etc.), air and atmosphere, water, soil, and noise as a nuisance.
There is no reference, however, to energy and radiation. Coverage does not extend to conditions of human life (health, safety, toxicological data, etc.); cultural sites, constructions and built structures; and financial and economical analysis and assumptions relating to the above. Neither is there is an explicit mention of agreements, policies, legislation, plans and programs, though it is difficult to see many, if any, of the above not falling within the meaning of "measure." It should be noted however, that this definition is of academic interest with specific regard to the 1998 Regulations.
Conditions for Obtaining the Information
Conditions for obtaining information through public bodies is as follows:
With the exception of the circumstances outlined in the previous point, and in one limited instance under major accident hazard legislation, business is not required to directly provide environmental information to the public under Irish legislation. Under the European Communities (Major Accident Hazards of Certain Industrial Activities) Regulations, 1986-1992, manufacturers covered by the regulations are required to inform persons "likely to be in a specified area," and those who specifically ask, of the nature of any hazard covered by the regulations and what to do in the event of an accident.
Business is required to provide information to public authorities in accordance with specific statutory procedures. This information becomes available to the public either in accordance with specific procedures, or in accordance with the 1998 Regulations subject, as appropriate, to exceptions such as considerations of commercial or industrial confidentiality, and intellectual property.
The timeframe for the provision of environmental information is as follows:
Who has the Right to Receive Environmental Information
Under the 1998 Regulations, any person has a right to environmental information. There are no limitations placed on the person. Specific planning and environmental legislation, access to planning and environmental registers, files and draft plans are as a rule open to the public and consequently no limitations are placed on individual persons or classes of person. Even where certain types of access are unspecified or left open to discretion, again the formula refers to "public" access (see for example EPA Act Section 67 monitoring records and Section 69 environmental quality data bases). Although "public" is not defined, it is clear that where a method of access is decided on, limitations cannot be placed on individual persons or classes of persons.
The form in which environmental information is to be made available is not specified. The term "make available" in the Article 5(1) duty to provide information is neither defined nor clarified. Local authority planning and environmental registers, files, and draft plans may only be inspected. However, copies of environmental impact statements attached to planning applications may be purchased. An Bord Pleanala files on planning appeals and files on waste license applications and decisions may be inspected and copied.
Certain EPA registers, such as those for the register of licenses (Section 89) may be inspected and copied. Potentially more open provisions on access are to be found in Section 69 on EPA environmental quality data: open in the sense that access is not necessarily limited to inspection or copying, though in the event it may be.
Refusal to Provide Information
Public authorities are obliged to refuse access to environmental information in three instances: (i) for personal information where consent for disclosure has not been given; (ii) for material supplied by a third party where that party "was not, or is not capable of being put under a legal obligation to supply the material," and (iii) where disclosure of information "would make it more likely that the environment to which such information relates will be damaged" (Article 7).
Public authorities have the discretion to refuse information in five other distinct instances, i.e. those where information requested (i) affects international relations, national defense or public security; (ii) affects matters which are sub judice, under inquiry or the subject of preliminary investigation proceedings; (iii) affects commercial or industrial confidentiality, or intellectual property; (iv) relates to internal communications of the public authority or material which is still in the course of completion; (v) is "manifestly unreasonable having regard to the volume or range of information sought" (Article 8).
There is no public interest test applied to the exceptions under the 1998 Regulations.
There are no provisions per se in planning and environmental legislation for the refusal of information. Such legislation sets out, or provides for the setting out, of the instances in which and the procedures by which information is to be made available. As there are no request procedures as such, neither are there provisions for refusal. In practice, a request for a copy of, say, a planning file could be refused as inspection only is permitted, but this refusal would be in the nature of a procedural decision, not of substantive public or private interest category.
Informal Guidelines for Agencies and the Public
The department of the environment produced its access to information on the environment guidance notes in tandem with the original 1993 regulations. Being largely a more readable paraphrasing of the regulations, these notes are for the most part general in content and nonbinding in nature. They are far from being comprehensive, providing as they do only a few practiced indicators of use to public authorities. The most significant of these include (i) interpretations of "historical" environmental information and its destruction (p. 3); (ii) the issue of accuracy of information held (p.4); (iii) the issue of availability of information that has not been generated (p. 5); (iv) guidelines on response to requests (p. 5) and (v) the production of information policy statements (p. 8). No conditions are specified.
The department of the environment has committed itself through its 1997 document, Sustainable Development: a Strategy for Ireland, to prepare a code of good practice on issuing environmental information aimed specifically at public authorities. However, little progress has been made on this initiative to date.
According to the 1998 Regulations, there are no general public guidelines other than what can be gleaned from the department of the environment's guidance notes discussed at above for the public to request environmental information. These primarily include (i) background information on active dissemination of information (p. 2); (ii) clarification of the extent of persons who may make requests (pp.4-5); (iii) general information on the processing of requests (p. 5); (iv) guidance of charges (p. 7); and (v) advice to public authorities with respect to producing information policy statements (p. 8).
The department of the environment has produced a series of general leaflets on public engagement in the planning process, namely those entitled "Commenting on a Planning Application, Environmental Impact Assessment, Making a Planning Appeal and The Development Plan."
Specific Institutions/Officials to Provide Information
The 1998 Regulations do not make any specific institution or authority or designated official responsible for central provision of environmental information. The regulations make each public authority or category of public authority covered responsible for providing access to information held. From an overall perspective, the minister for the environment and local government are responsible, pursuant to section 110 of the EPA Act, 19924 for making regulations on access to information on the environment, and the department of the environment monitors and reviews the general application of the regulations. Neither, however, are responsible for providing access to environmental information in general.
Similarly, there is no single institution or official for providing central access to information under planning and environmental legislation. For instance, individual planning authorities are charged with the responsibility of maintaining registers and files, and for arranging access to them in accordance with statutory criteria. Local authorities and the EPA are responsible for access to specified pollution and other environmental information sources as set out in the relevant legislation. Of all authorities, the EPA comes closest to being a public authority with responsibility for providing environmental information to the public. For instance, the EPA is required to maintain environmental quality databases and to provide for public access to them. However, the EPA Act identifies the information types to be provided by the EPA, and, as the agency has limited, specified competence in the fields of environmental pollution and waste management, it takes its place alongside other public authorities subject to access to information obligations.
The department of the environment has set up an environmental information service, known as ENFO, which is open to the public. Staff at ENFO respond to public enquiries and assist the public in using the service's library resources. Over the period September 1990 to December 1996, ENFO received over 345,000 visitors and answered 45,415 written inquiries. An ENFO database is connected on-line to 36 public libraries (see the department's report to the commission on the implementation of Directive 90/313/EEC, pp. 16-17).
If an Authority Does Not Possess the Information
Under the 1998 Regulations, public authorities are required to provide information in their possession. According to the Department of the Environment's Nonbinding Guidance Notes, a public authority is not obliged to "generate, gather or otherwise obtain information it does not have" (p. 5). Information includes "historical" information. However, historical information ceases to be held where it is "destroyed in accordance with standard and reasonable office procedures" (p. 3).
The department's guidance notes suggest that "reasonable assistance should be offered" to members of the public in order to help the proper formulation of requests. This would imply that a public authority should provide contacts if aware of them.
There is no obligation on a public authority to forward the request. However, in light of b) above, it might be considered good practice to provide a member of the public with appropriate contacts held by the authority.
Active dissemination is not obligatory under the regulations (1998).
There is no statutory obligation on either local authorities or An Bord Pleanala to disseminate information.
In contrast, the EPA is required by the EPA Act, 1992 to disseminate the following specific classes of information:
The department of the environment and local government publish a wide range of studies, reports and other publications relating to environmental protection and sustainable development. These tend, for the most part, to be of a policy-formulating or strategic nature, for example, Ireland, Climate Change: CO2 Abatement Strategy (1993); Recycling for Ireland: A Strategy for Recycling Domestic and Commercial Waste (1994); Local Authorities and Sustainable Development (1995); Better Local Government: A Program for Change (1996); Wind Farm Development: Guidelines for Planning Authorities (1996) and Sustainable Development: A Strategy for Ireland (1997).
The department also publishes a quarterly Environment Bulletin which features selected environmental data, usually from local authorities, and updates on planning and environmental developments. However, as a rule, the department does not engage in dissemination of data on monitoring and environmental quality, leaving it to other public authorities to discharge this function.
An Bord Pleanala produces annual reports on its activities, and these provide an overview of planning appeals for the year concerned.
The EPA has produced documents disseminating information including the following:
The office of the ombudsman produces an annual report which includes a section on access to environmental cases which are brought to its attention. These reports provide useful, if limited, case studies on problems of access to information.
No institution is specifically responsible for the active spreading of environmental information in case of emergency. Competent authorities, i.e. local authorities, health boards and the Gardai (police), are required by Regulation 16 of the European Communities (Major Accident Hazards of Certain Industrial Activities) Regulations, (1986-1992) to draw up emergency plans to anticipate and deal with the outside effects of hazardous accidents on the local population and environment. These plans are to be coordinated with appropriate manufacturers who have to prepare their own on-site emergency plans (Regulation 15). The only requirement for the mandatory provision of information is placed on manufacturers who are to inform (i) persons "likely to be in a specified area" and (ii) those who specifically ask on certain specified items, including the nature of the relevant hazard and what to do in the event of an accident (Regulation 18). Dissemination of the results of any examinations or investigations of accidents conducted by a local authority, health board or the Gardai is at the discretion of the relevant competent authority or authorities.
There is no regularized process for involving or informing environmental organizations in or on policy and legislative issues. Information on initiatives is forthcoming on an informal basis, usually where an organization is closely monitoring a development on its own initiative. Input into policy and legislative formulation is possible, but usually on a case-by-case basis pursuant to direct contact with the relevant officials. Environmental organizations such as An Taisce — The National Trust for Ireland and VOICE have made presentations and taken questions at parliamentary committees. In certain instances, individual government ministers or public officials will invite submissions from certain environmental organizations or organize meetings with them, but this will be on an irregular basis.
Methods of Dissemination
The typical methods used are as follows:
Electronic Means of Dissemination
There is no obligation to spread the information and/or environmental information electronically.
Nongovernmental Centers
Outside governmental facilities such as the department of the environment and local government's ENFO service and publicly-funded facilities such as public libraries, there are no centers which specifically provide environmental information in a comprehensive and organized manner. There are community groups which give advice to persons, and such advice could relate to environmental information issues, but these are more in the nature of case-related service providers.
(1) Development and environmental plans: under the planning law, planning authorities are required to produce a development plan every five years. Draft plans are put on public display for at least three months. Any person may comment on a draft. If changes are made to the draft, the amendments must be displayed for at least another month.
Proposed local authority waste management plans and EPA hazardous waste management plans are put on public display for two months, and written representations on the proposal are to be taken into consideration by the authority.
Proposed water quality management plans are available for public inspection for not less than three months. Any person may make written representations on the proposed plan. Proposed air quality management plans may be inspected by the public during a stated but unspecified period. Any representations made on the proposed plan must be taken into account by the local authority.
(2) Licensing application procedures: any person may inspect an application for planning permission and submit a written comment which must be taken into consideration by the planning authority when making its decision.
Applications for integrated pollution control licenses are available for public inspection for two months. Submissions may be made in the early stages of an IPC application assessment. All submissions are open to public inspection. The EPA issues a proposed determination on the application. Individuals may lodge "third party" objections to proposed determinations in writing.
Copies of waste license applications may be inspected or purchased by the public pursuant to regulations made by the minister for the environment. Written objections may be made by any person, and an oral hearing requested. With respect to waste collection permits, the minister for the environment may make regulations laying down conditions for public inspection of permit applications and the making of submissions.
Applications for licenses for direct discharges into waters (but not for discharges to sewers) and for air pollution licenses may be inspected by the public.
(3) Licensing appeals: any person may appeal a decision on a planning application, and on applications for direct discharge into waters and emissions to the atmosphere to An Bord Pleanala (the Planning Appeals Board). Any appellant may apply for an oral hearing in the course of an appeal, and make submissions.
There is no specific right to a referendum on environmental issues. Neither is there a right of initiative on this or other issues. Initiatives are taken by the government and legislation is enacted by the Oireachtas. Decisionmaking takes place within this format, and participation by individuals and organizations will normally take place through the lobbying process.
There is one limited mechanism through which selected individuals and NGOs can have an input at the public authority level. Section 27 of the EPA Act, 1992, provides for the setting up of an Advisory Committee whose purpose, according to Section 28, is to make recommendations to the EPA or the minister for the environment relating to the functions of the EPA. The minister is empowered to draw up a list of organizations from which certain members of the advisory committee may be appointed. These organizations include those concerned with environmental protection, and those which are representative of persons professionally and educationally concerned with environmental protection. The EPA or the minister "shall have regard" to any recommendations made by the committee.
This arrangement falls short of a right insofar as from the outset, the environmental status of an NGO is a matter of the minister's opinion. Once on the committee, the individual or NGO only has a right to contribute to the committee's deliberations and not necessarily to determine the outcome of a recommendation. However, in this limited context an individual has the potential to have comment taken into account.
Outside of this arrangement, there are no other statutory mechanisms or rights for influencing public authority functions.
Apart from this instance, there are no formal arrangements in this regard. It is generally a matter of initiative to successfully follow an item through the decision process.
There is a proposal for a National Environmental Partnership Forum which has not yet been established (see Department of the Environment and Local Government, National Environment Partnership Forum [undated]). The functions of this proposed forum have not yet been clarified, but it is expected to deal generally with environmental policy, quality and public awareness. The composition of the forum is far from clear, but it is hoped to be broadly representative with approximate parity across the interests to be represented as well as independent and capable of advising the government on environmental issues and policies. It is envisaged that the secretariat will be provided by the department, assisted by external consultancy. It is hoped that the forum will be in a position to meet in June 1998, but this is not certain. A consultative conference was held on March 25, 1998, and the department hopes to set up a forum at an early stage.
Openness of Parliamentary Committees
Sitings of the Dail (lower house) are open to the public through a limited number of seats available in the public gallery. Oireachtas sittings are covered regularly on television and in the Irish Times. Environmental affairs are dealt with in parliamentary committees of which there are two types: Select Dail Committees (lower house of parliament) and joint committees. Joint committees are composed of members of both houses of parliament who sit on counterpart Select Dail and Select Seanad (Senate) Committees. Joint committees deal with policies and work programs for the individual department each tracks. Select Dail Committees deal with budgetary estimates and legislation emanating from the department each of these tracks. Environmental matters are addressed by the joint committee on environment and local government and by the Select Dail Committee on Environment and Local Government, which in turn becomes a smaller select committee when considering legislation. The joint committee may take evidence from third parties, but this happens on rare occasions. Attendance at a committee meeting is by invitation of that committee and at its discretion.
Individuals and NGOs may, by invitation or in response to advertisement, make written and oral presentations at parliamentary committees and to be subject to questioning by committee members. The arrangements are at the discretion of the committee. There is no procedure for participating in parliamentary sessions.
The department of the environment and local government does administer an environmental partnership fund whose objective is to support partnership between local authorities, community groups and NGOs with the purpose of raising environmental awareness in local communities. The project types supported are in the main direct environmental projects such as recycling schemes, environmental education and environment improvement, rather than those that would assist groups in participation in official decision-making. In 1997, the overall fund was IEP 100,000.
A very small number of grants were, nevertheless, allocated in 1997 to projects with a public participation aspect. An allocation of IEP 2,000 was made to a project aimed at identifying local resources to identify development problems in a certain area, and to encourage community participation in the development process. Two grants of IEP 1,000 were awarded to two separate projects, one relating to the promotion of a draft management plan for a specific area, the other supporting a forum in the dissemination of a report on the state of the environment in Dublin City (Department of the Environment Environment Bulletin: developments in the area of environmental protection, Issue 36, November 1997, pp. 5 and 38 et seq.).
As regards environmental legislation, cases taken are constructed around strictly delineated procedures and proofs set out in provisions of the relevant statute.
There is a very limited number of environmental cases taken in Irish courts. There are more cases taken on planning issues, though many of these are on technical matters. In one instance, Hanrahan v. Merck, Sharpe, Dohme, (1988) Irish Law Reports Monthly 629, the supreme court held that emissions from an incinerator constituted in this case a nuisance, and one which caused the applicant loss. This case was taken using the common law and not provisions in environmental statutes.
So far there have been no Irish court cases on access to environmental information, although An Taisce — The National Trust for Ireland was involved in the Court of First Instance of the European Communities in the WWF U.K. (World Wide Fund for Nature) v. EU Commission (Case T-105/95). In this case, the applicant sought information held by the Commission relating to a proposed EU-funded visitors centre in Mullaghmore, Ireland.
The main type of action taken in the high court relating to environmental and information cases is judicial review of a decision of an public authority. The length of time it takes for the conduct of a judicial review procedure varies over time. At present, a less complicated case may well be disposed of by the high court in under a year, with a more complicated ongoing well into a second year. However, factors such as the availability of judges, for example where a number of judges may find themselves presiding over a particularly lengthy case or assigned to tribunals, may come into play extending the length of time a pending case may be on a list.
In instances of particular urgency, it is possible to have a case brought forward.
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | 1,2 | 1,2 |
| interested/affected | 3 | 3 |
NGOs |
||
| everyone | 1,2 | 1,2 |
| interested/affected | 3 | 3 |
1. In the case of decisions on planning applications, air pollution and section 4 water pollution licenses. 2. In the case of integrated pollution control and waste license applications. 3. In the case of Access to Information on the Environment Regulations. |
||
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | 1,2 | - | - | - | - |
| interested/affected | 3 | - | - | - | 1,3 |
NGOs |
|||||
| everyone | 1,2 | - | - | - | - |
| interested/affected | 3 | - | - | - | 1,3 |
Under the Waste Management Act, 1996, it is open to any person to seek in the high court interim or interlocutory injunctions (Section 57) or remedies (Section 58) concerning the improper holding, recovery or disposal of waste. Both of these avenues are open regardless of the taking or not of a prosecution by the relevant public authority. The Section 58 remedy comprises an order from the relevant court (district court, circuit court or high court) relating to past and present waste management activities and environmental pollution.
Any problems with enforcement of legal provisions generally will usually find their roots either in laws that are not particularly stringent or in underresourced enforcement departments in public authorities. However, once a case reaches the courts, as a general proposition, enforcement of judgments is more rigorous and effective.
Experts' fees are a little more difficult to establish as they vary greatly between individuals and disciplines.
In cases where lawyers do not charge fees unless they win a case for a client, that client will still be liable for the other side's costs should the case be lost should the court so order. Where a party wins its case, it is possible to recover court costs including lawyers' and experts' fees.
An average gross monthly salary, based on the average industrial wage, is approximately IEP 1,200 per month.
The figures for environmental complaints are limited to some extent by the fact that the ombudsman is not empowered to deal with complaints in relation to the environmental protection agency, An Bord Pleanala, and semi-state organizations whose activities impact in some form or other on the environment such as the electricity supply board, Aer Lingus, Bus Eireann, Dublin Bus and Irish Rail.