Chapter 5: Ireland

(continued)

CONCLUSIONS AND RECOMMENDATIONS

Evaluation of Progress Made in the Last Three Years in Legal and Non-legal Fields

Some Preliminary Observations

Access to information in Ireland is a complex subject with a number of procedures and rights spread across a range of legislation. In European terms, Ireland is, if not necessarily a leader, then at least to the fore of the continent's proponents on general freedom of information. The Freedom of Information Act, 1997, represents a major step forward in legal, political and administrative terms. By the end of 1997, the act was not yet in force,⁵ and actual progress in its general application will be difficult to evaluate much before the end of the decade. However, it is a comprehensive piece of legislation providing opportunities for achieving significant freedom of information.

On the specific matter of access to information on the environment, the picture is more confusing. The text of the Access to Information on the Environment Regulations, 1996 and the 1998 Regulations which replaced them⁶ is vague on many important issues and consequently difficult to interpret. The regulations still have a complex interaction with other environment-related legislation featuring specific provision for, mainly, inspection of records. Aspects of these other items of legislation have been subject to minor adjustments in recent years, and these are treated below. However, these incremental steps have not succeeded in addressing fundamental problems associated with a tiered system of inconsistent information access.

Major Achievements

Legal Achievements

Access to Information on the Environment

There have been few legal changes made to access to information on the environment over the period January 1, 1995 to December 31, 1997, and even fewer, if any, can be termed "major achievements." The 1993 Access to Information on the Environment Regulations were revoked and replaced by the eponymous 1998 Regulations (Statutory Instrument No. 185/1996).

The most significant improvement flowing from this development was the reduction of the time limit for responding to requests for information. Article 9 of the 1998 Regulations now provides that a response must be issued no later than one month from the date of receipt of the request, but that this period can be extended to no more than two months where an authority cannot respond within the one-month limit on account of the nature or extent of the request. The time limit in the 1993 regulations was the two months provided for in Directive 90/313/EEC.

A series of further, modest improvements were made to the domestic regime, namely the following:

the definition of public authority is tightened by importing the text of the, albeit limited, definition of public authority in section 3(1) of the Environmental Protection Agency Act, 1992 into Article 4(2) of the 1998 Regulations;
one discretionary ground for refusal provided for in Directive 90/313/EEC is removed, namely that ground concerning the confidentiality of the deliberations or proceedings of public authorities, which was achieved by the deletion of Article 6(1)(c) of the 1993 regulations;
under the 1998 Regulations, concluded inquiries are no longer covered by the discretionary exemption of Article 7(1)(b); and
the discretionary ground in Article 7(2) of the regulations on manifestly unreasonable requests is tightened up by permitting its invocation only with respect to the volume or range of information sought.

Planning and Development

Article 2 of the Local Government (Planning and Development) (No. 2) Regulations, 1995 (Statutory Instrument No. 95/1995) now permits members of the public to inspect and copy from files on appeals to An Bord Pleanala (the planning appeals board) for a period of five years after the conclusion of an appeal.

Integrated Pollution Control (IPC)

The Environmental Protection Agency (Licensing) (Amendment No. 2) Regulations, 1995 now require the EPA to make (i) license application documentation and (ii) all its reports on determinations or decisions on IPC license applications publicly available for three years after decisions are made.

Waste Management

Significant progress in limited circumstances has been made in other recent legislation. The Waste Management Act was enacted in 1996, and this statute introduced information procedures that are considerably more liberal than those provided for in other environmental and planning legislation. Most notably, members of the public have a right to inspect and copy material from files relating to waste license applications and decisions, both during the course of the application and after the decision is made by the EPA. In counterpart legislation on planning and pollution, there is only a right to inspect registers and files, and no right to make copies.

There is a public right of participation in the drafting process for waste management plans at two stages, i.e. the pre-draft and draft stages.

Freedom of Information

The most prominent development in the field of access to information relates to the general right provided for in the Freedom of Information Act, 1997. It has been argued that this statute does not apply to access to information on the environment on account of the Act's Section 46(2). The formulation of Section 46(2) is not entirely clear, and, while its application to planning files and pollution registers is clearly arguable, there are greater doubts as to whether these provisions can exclude the application of the Freedom of Information Act to the Access to Information on the Environment Regulations. Future trends, including possible judicial review in the higher courts, may throw light on this problem. If it transpires in law that Section 46(2) does not apply to the 1998 Regulations, the Freedom of Information Act will have a fundamental impact, probably rendering the regulations inoperable. For its part, the department of the environment and local government intends to closely monitor the operation of environmental information regulations and the freedom of information act respectively.

Non-legal Achievements

It is difficult to isolate substantial non-formal achievements over the past three years. The department of the environment's 1997 review of the implementation of Directive 90/313 (report to the EU Commission) provided some interesting data on the use and operation of the access to information on the environment regulations. The review reported the heavy use of the department of the environment-sponsored library and information service (ENFO) which has disseminated information to a very large number of users.

The implementation of the Freedom of Information Act, 1997, will be expected to result in public authorities adopting more citizen-oriented practices, and this may to some extent have an impact on officials dealing with environmental information. The office of the ombudsman has played a very positive role in this respect. Annual reports of the ombudsman have highlighted both the extent and types of problems experienced by members of the public in dealing with public authorities under the access to information on the environment regulations. These reports have played a significant role in drawing attention to certain public authority practices and continued difficulties with official cultures of secrecy.

The department of the environment and local government's plan for a National Environmental Partnership Forum, planned to be in operation in June 1998, is a development which may significantly improve NGO participation in the discussion of environmental policy. However, the composition of the forum and its work program will have to be closely examined before the extent of its impact can be assessed.

Problems

The last three years have witnessed continued difficulties in the achievement of access to information on the environment. One of the most significant, continuing legal drawbacks is the inadequacy of the remedies open to requesters running into difficulties with public authority decisions under the Access to Information on the Environment Regulations, 1996. This problem was accepted in the department of the environment review referred to above, and the department proposes to examine this particular problem by considering an administrative appeals system specifically for environmental information.

For the present however, and unlike the Freedom of Information Act, 1997, there are no specific procedures set down for dealing with disputes under the regulations. The only recourse is to the ombudsman under other legislation (Ombudsman Act, 1980). This option is subject to severe limitations, one of the most unattractive being the lack of binding quality of the ombudsman's review procedure. Furthermore, the Ombudsman Act does not apply to all public authorities within the meaning of the 1996 Regulations. The nature of this problem is highlighted by the more extensive remedies provided for in the freedom of information act and overseen by that act's information commissioner, a function discharged, ironically, by the ombudsman.

Deficiencies in review procedures have a direct impact on access to justice. With the absence of an adequate intermediate review procedure, disgruntled applicants are frequently left with no authoritative recourse other than judicial review in the high court. However, the dearth of cases taken in the high court concerning access to information on the environment is testimony to the delays and expense of this procedure, and its inherent unsuitability as a working means of providing justice.

Future Needs

In terms of law on access to environmental information, the following problems need to be addressed:

the lack of clarity and detail in the access to information on the environment regulations, as most of the important terms in the regulations are not defined; procedures for access, and exemptions and limitations on exemptions are not laid out in detail;
the absence of an adequate form of redress of an independent, relatively informal and inexpensive nature; and
divergence in the means of access to information held on planning and environmental registers and files, e.g. right to copy versus right to inspect.

It is argued here that in terms of access to information and access to justice, legal arrangements need to be clear and consistent. The most effective and suitable means of achieving such goals are arguably to regulate all rights and duties in an act of the Oireachtas (parliament) as opposed to ministerial regulations. For instance, access to information to environmental information and administrative and judicial remedies would be better secured through statute. The most appropriate and transparent mechanism in this respect would be to extend the application of the freedom of information act to environmental information, rather than to produce a separate piece of legislation.

With respect to restrictions on copying from registers and documentation, two possible alternatives could be resorted to:

to repeal or amend Section 46(2) of the Freedom of Information Act and allow the act to regulate in the first instance planning and environmental registers and files;
to simply amend the appropriate provisions in planning and pollution statutes to provide for copying from the relevant sources.

The second alternative is a minimalist solution and does not facilitate possible future developments such as planning and environmental items being held and accessible, in electronic form. The freedom of information act route would be more favorable insofar as it would encourage public authorities to take initiatives in providing access to information in response to technological and managerial developments without necessarily requiring them to do so.

5. The act came into operation on April 21, 1998 for most public bodies, and will come into effect for outstanding bodies such as local authorities on October 21, 1998.
6. European Communities Act, 1972 (Access to Information on the Environment) Regulations, 1998 (Statutory Instrument No. 125/1998).

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