ACCC/C/2016/141 (Ireland)
Draft findings

Draft findings and recommendations with regard to
communication ACCC/C/2016/141 concerning compliance by
Ireland
Adopted by the Compliance Committee on …

I.

Introduction
1.
On 19 August 2016, a non-governmental organization, Right to Know, (the communicant)
submitted a communication to the Committee under the Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus
Convention) alleging a failure by Ireland to comply with its obligations under articles 3, 4 and 9 of
the Convention with respect to requests for access to environmental information and review
mechanisms therefor.
2.
At its fifty-fourth meeting (27-30 September 2016), the Committee determined on a
preliminary basis that the communication was admissible.
3.
Pursuant to paragraph 22 of the annex to decision I/7 of the Meeting of the Parties to the
Convention, the communication was forwarded to the Party concerned on 6 December 2016 with a
deadline for its response of 6 May 2017.
4.

On 5 May 2017, the Party concerned provided its response to the communication.

5.
On 18 and 27 October 2017, respectively, the Environmental Pillar, a network of Irish
environmental non-governmental organizations, and Mr. Minch, a member of the public, submitted
statements as observers.
6.

On 24 October 2018, the Party concerned submitted additional information.

7.
The Committee held a hearing to discuss the substance of the communication at its sixtysecond meeting (Geneva, 5-9 November 2018), with the participation of representatives of the
communicant, the Party concerned, and the Environmental Pillar. At the same meeting, the
Committee confirmed the admissibility of the communication.
8.
On 21 August 2019, the communicant provided an update. On 23 August 2019, the
Committee invited the Party concerned to provide any comments it had on the communicant’s update
by 13 September 2019. No comments were received from the Party concerned.
9.
The Committee completed its draft findings through its electronic decision-making procedure
on 5 August 2020. In accordance with paragraph 34 of the annex to decision I/7, the draft findings
were forwarded on 7 August 2020 for comments to the Party concerned and the communicant. Both
were invited to provide comments by 25 September 2020.
10.

The Party concerned and the communicant provided comments on […] and […] respectively.

11.
At its […] meeting, the Committee proceeded to finalize its findings in closed session, taking
account of the comments received. The Committee then adopted its findings and agreed that they

1

 should be published as a formal pre-session document to its […] meeting. It requested the secretariat
to send the findings to the Party concerned and the communicant.

II. Summary of facts, evidence and issues 1
A. Legal framework
Access to environmental information
12. The European Communities (Access to Information on the Environment) Regulations (the
AIE Regulations) govern access to environmental information in the Party concerned. 2
13. Article 6(1)(b) of the AIE Regulations provides that environmental information requests must
state that they are made under those Regulations. 3
14. Article 7(2) requires a public authority to make a decision on an environmental information
request within one month. If, because of the volume or complexity of the environmental information
requested, the public authority is unable to make a decision within one month, it shall give notice to
the applicant and specify the date not later than 2 months from the request by which the response
will be made.
15. Article 10(7) provides that, where a decision is not notified to the applicant within the relevant
period specified in article 7, a decision refusing the request shall be deemed to have been made on
the date of expiry of the specified period.
16. In May 2014, the Minister for Housing, Planning and Local Government published
Guidelines for Public Authorities and others on the implementation of the AIE Regulations. 4
Review of environmental information requests
17. Under the AIE Regulations, an unsatisfied applicant of a request for access to environmental
information is required to first lodge an application for internal review to the public authority
concerned before appealing to the Office of Commissioner for Environmental Information (OCEI)
and finally to the courts.
Internal review of refusal
18. Article 11 of the AIE Regulations sets out the procedures for the internal review of refusals
of environmental information requests. Article 11(1) provides that, where the applicant’s request
has been refused, in whole or in part, the applicant may, not later than one month following receipt
of the decision of the public authority concerned, request the public authority to review the decision,
in whole or in part. The one-month deadline for seeking internal review also applies in the case of a
deemed refusal.
19. Article 11(2) provides that, following the receipt of a request for a review under article 11(1),
the public authority concerned shall designate a person unconnected with the original decision

This section summarizes only the main facts, evidence and issues considered to be relevant to the question of
compliance, as presented to and considered by the Committee.
2
Party’s response to the communication, para. 2.1.
3
Communication, annex 1.
4
Additional information from the Party concerned, 24 October 2018, p. 8.
1

2

 whose rank is the same as, or higher than, that of the original decision-maker to review the decision
and that person shall:
(a) Affirm, vary or annul the decision; and
(b) Where appropriate, require the public authority to make available environmental
information to the applicant, in accordance with these Regulations.
20. Pursuant to article 11(4), if the request for internal review results in a decision refusing the
information request in whole or in part, the public authority shall specify the reasons for the decision
to refuse, and inform the applicant of his or her right of appeal.
21. According to article 11(3), a decision under article 11(2) “shall be notified to the applicant
within one month from receipt of the request for the internal review”. In the Party concerned, the
failure of a public authority to respond at the internal review decision-making stage within this onemonth period or at all is called a “deemed refusal at the second stage”. 5
Appeal to the OCEI
22. Article 12 of the AIE Regulations establishes the OCEI. Pursuant to article 12(4), the
applicant may appeal an internal review decision not later than one month from receipt of the
decision (or in the case of a deemed refusal of a request for internal review, the time the decision
should have been notified), unless the OCEI is satisfied in the circumstances of a particular case that
it is reasonable to extend the time limit.
23.

Article 12(5) states that in case of receipt of an appeal under this article the OCEI shall:
(a) Review the decision of the public authority;
(b) Affirm, vary or annul the decision concerned, specifying the reasons for his or her
decision; and
(c) Where appropriate, require the public authority to make available environmental
information to the applicant,
in accordance with the Regulations.

24. Article 12(7) requires a public authority to comply with a decision of the OCEI within 3
weeks of its receipt. Article 12(8) provides that, where a public authority fails to do so, the
Commissioner may apply to the High Court for an order directing the public authority to comply
with that decision and, on the hearing of such an application, the High Court may grant such relief.
25. The OCEI has the power to conduct a full factual and legal review of any decision taken by
the public authority. 6 However, the OCEI cannot suspend a decision-making procedure that is
subject to public participation. 7 There is no statutory obligation to take a decision within a certain
time frame. 8
26.

Paragraph 14(2) of the OCEI’s Procedures Manual states that:
“Cases will not be dealt with solely by reference to age. In some circumstances, more recent
cases may be dealt with before older cases. The circumstances in which this may arise
include:
…
where the appellant seeks priority for a specific pressing reason; however, as most
appellants will be anxious, understandably, to have their cases expedited, this ground

Party’s response to communication, annex 7, pp. 70 and 78.
Communication p. 3, and Party’s response to communication, para 6.3.
7
Communication, p. 9, and Party’s response to communication, para. 6.8.
8
Communication, pp. 3 and 8.
5
6

3

 will apply in exceptional circumstances only and only where resources allow – timeconsuming cases involving a large volume of records and/or complex issues are unlikely
to be considered suitable for expedited processing”. 9
27. By virtue of article 12(2) of the AIE Regulations, the Commissioner for Environmental
Information (CEI) is also the person who acts as Information Commissioner under the FOI Act. The
FOI and AIE legal regimes are, however, independent of each other, as are the roles of Information
Commissioner and the CEI. 10 The FOI Act applies to information requests not made under the AIE
Regulations.
28. According to section 22(3) of the FOI Act, the Information Commissioner is required to rule
on appeals “as soon as may be and, insofar as practicable, not later than 4 months after the receipt
by the Commissioner of the application for the review concerned.” 11
Appeal to a court of law
29. Under article 13(1) of the AIE Regulations, “a party to an appeal under article 12 or any other
person affected by a decision” of the OCEI may appeal against that decision to the High Court on a
point of law.
30. Appeals proceed according to the general rules for statutory appeals. 12 Challenges to OCEI
decisions can alternatively be brought by way of judicial review. 13 The court’s jurisdiction in an
application for judicial review is similar to that for statutory appeals in limiting consideration of
questions of fact. 14
31. The High Court cannot order interim measures pending its review, nor can it issue an order
to release the requested information. 15 However, it has jurisdiction to uphold a refusal to provide
information or refer the matter back to the OCEI for further consideration. The OCEI in turn may
again remit the matter to the public authority for further consideration. 16
32. High Court rulings can be appealed to the Court of Appeal. The decisions of Court of Appeal
may be appealed to the Supreme Court, which has discretion as to which cases it takes. 17

Facts
Statistics on AIE requests
33.
The table below reflects the number of AIE requests received by public authorities in the
Party concerned between 2013 and 2017, their outcome and any resulting review procedures. 18
Year

Requests
received

Requests
granted in
full

Requests
granted
in part

Requests
refused

Internal
reviews

Appeals
to OCEI

Appeals to
High
Court

Communication, annex 3, pp. 10-11.
Additional information from the Party concerned, 24 October 2018, annex 1b, pp. 11 and 77.
11
Communication, footnote 8.
12
Communication, p. 6, and Party’s response to communication, para 6.1.
13
Party’s response to communication, para. 6.9.
14
Ibid., para. 6.6.
15
Communication, p 6, and Party’s response to communication, para 6.8.
16
Update from the communicant, 9 October 2018, p. 2.
17
Communication, p 7.
18
Additional information from the Party concerned, 24 October 2018, p. 2.
9

10

4

 2013

374

192

60

91

40

7

0

2014

608

325

97

124

61

13

0

2015

658

322

94

174

57

23

1

2016

670

338

104

170

96

52

2

2017

606

276

128

141

91

52

2

Appeals to the OCEI
34.
The percentage of requests for environmental information made to public authorities that
were subsequently appealed to the OCEI was 3% in 2013 and 2014, 5% in 2015, 8% in 2016, 9% in
2017, 8% in 2018 and 9% in 2019. 19
35.
The table below sets out the outcomes of the decisions issued by the OCEI in 2016, 2017 and
2018:

201620
201721
201822

OCEI
decisions

Appeal upheld
by OCEI in
full or in part

27
35
40

19
18
15

Public
authority
granted full
access
during
OCEI’s
review
3

OCEI ordered
public
authorities
to
provide all or
some of the
requested
information
12
2
9

OCEI remitted
case to public
authority for
new decision

9
3

36.
In 2016, 2017, 2018 and 2019 the OCEI took an average of 316, 262, 279 and 249 days
respectively to close a case. 23 These times do not include the two-month period following the
adoption of the decision, during which either party may appeal against it. (There is no obligation on
a public authority to give effect to the decision until the two-month deadline for appeal expires.)24
Court appeals on points of law
37.
As set out in the table in paragraph 33 above, from 2013-2017 there were a total of five
appeals of OCEI decisions to the High Court under article 13 of the AIE Regulations. In addition,
five of the decisions made by the OCEI in 2018 were appealed to the High Court under the same
provision. Three of these were appealed by the public authority and two were appealed by the
applicant. 25

OCEI 2018 annual report, p. 67, and OCEI 2019 annual report, p. 75.
OCEI 2016 annual report, p. 86.
21
OCEI 2017 annual report, p. 88.
22
OCEI 2018 annual report, p. 76.
23
OCEI 2017 annual report, p. 79, OCEI 2018 annual report, p. 68, OCEI 2019 annual report, p. 72.
24
Update from the communicant, 9 October 2018, p. 1, and annex 1.
25
OCEI 2018 annual report, p. 72.
19
20

5

 38.
In addition to the five appeals to the High Court under article 13, there was one judicial review
in 2018 of a decision made by a public authority (the Department of the Taoiseach (the Prime
Minister)) under the AIE Regulations. 26
39.

In 2018, one High Court decision was appealed to the Court of Appeal. 27

Relevant case law
40.
In NAMA v. Commissioner for Environmental Information28, Mr. Sheridan, the
communicant’s director, had requested information from the National Asset Management Authority
(NAMA) on 3 February 2010. 29 On 13 September 2011, the OCEI determined that NAMA was a
public authority under the AIE Regulations. In November 2011, NAMA appealed against OCEI’s
determination that it was a public authority; the High Court upheld the OCEI’s decision on 27
February 2013. NAMA then appealed to the Supreme Court on 19 April 2013, which dismissed the
appeal on 23 June 2015. 30
41.
On 9 August 2016, Mr. Sheridan asked the OCEI for an update on what action had been taken
following the judgment of the Supreme Court in the NAMA case. 31 The OCEI replied on 18 August
2016 that he would need to contact NAMA directly because the Supreme Court had simply dismissed
NAMA’s appeal without issuing any order or directions following its judgment. 32 NAMA refused
Mr. Sheridan’s request on 30 August 2016 on the grounds that the information did not constitute
environmental information within the meaning of article 3(1) of the AIE Regulations. 33 He was
informed that he was entitled to submit a request for the information under the FOI Act. 34
42.
Mr. Sheridan was also the applicant in IBRC Limited (formerly Anglo Irish Bank) v.
Commissioner for Environmental Information. On 1 April 2010, he appealed against the bank’s
refusal to provide information to the OCEI, which issued its decision on 1 September 2011, finding
that the bank was not justified in refusing the request on the grounds that it is not a public authority
within the meaning of the AIE Regulations. 35 On appeal, the High Court stayed the proceedings
pending the outcome of the NAMA case. In its reply of 18 August 2016 to Mr. Sheridan’s request for
an update (see para. 41 above), the OCEI indicated that neither party had applied to re-activate the
proceeding following the outcome of the NAMA case and the High Court’s stay remained in effect. 36
43.
Minch v. CEI concerned a request made by Mr. Minch on 18 May 2013, which was refused
on appeal by the OCEI on 15 December 2014 on the grounds that the information requested was not
environmental information. 37 On 16 February 2016, the High Court quashed the OCEI’s decision,
finding that the OCEI had applied an incorrect legal test. Both the OCEI and the public authority
appealed. The Court of Appeal accepted the argument made by all parties that the appeal urgently
needed to be heard and assigned an “early” hearing date on 16 June 2017. 38 On 28 July 2017 the
Court of Appeal found that the request concerned environmental information and in the subsequent
court order of 6 October 2017 set aside the contested decision. It remitted the matter to the OCEI to
Ibid., p. 74.
Ibid., p. 72.
28
NAMA v. Commissioner for Environmental Information [2013] IEHC 166.
29
Party’s response to the communication, annex 12, pp. 1-2.
30
Party’s response to communication, para. 6.11.
31
Communication, annex 5.
32
Ibid.
33
Party’s response to communication, para. 6.12.
34
Ibid.
35
Communication, annex 2.
36
Communication, annex 5.
37
Party’s response to communication, p. 2, and annex 19.
38
Party’s response to communication, para. 6.15.
26
27

6

 determine whether the exemptions on disclosure raised by the public authority at the request stage
should apply. In January 2018 the appellant was provided with a redacted copy of the information
requested. On 15 February 2018 the OCEI delivered its decision finding that the remainder of the
information requested could be withheld on the grounds of commercial confidentiality. No further
appeal was lodged against that decision. 39
Resources and capacity-building
44.
To enable public authorities to process requests for information more rapidly, the Department
of Communications, Climate Action and Environment arranged training days about the AIE
Regulations in 2014, 2015, 2016, and 2018 for their staff. Each of these sessions was attended by
over 100 people. 40
45.
Prior to 2015, the OCEI relied on the subsidies granted to the Information Commissioner,
leaving the holder of the two offices to apportion those sums between them as he or she saw fit. In
2015, the OCEI was allocated dedicated funding for the first time. 41

B. Domestic remedies and admissibility
46.
The communicant submits that its communication concerns systemic problems in the scheme
of the Party concerned regarding access to environmental information, which are not amenable to
domestic remedies. 42 As well as his court cases summarized above, Mr. Sheridan, the communicant’s
director, has made repeated submissions to the OCEI on the manner of its review of refusals of access
to environmental information requests. The communicant argues that seeking any further domestic
redress would be pointless as legislative changes are needed to ensure expeditious and timely
decisions by courts and the OCEI. 43
47.

The Party concerned has not challenged the admissibility of the communication.

C. Substantive issues
Article 4(2) and (7)
48.
The communicant claims that there is a systemic failure by public authorities in the Party
concerned to comply with the maximum two-month period prescribed under article 4(2) and (7) of
the Convention when requests for access to environmental information are refused on “narrow
threshold jurisdictional points” (i.e. whether the body concerned constitutes a public authority or
whether the requested information is environmental information).
49.
The communicant submits that, even where a public authority rejects a request on
jurisdictional grounds, it should still be required to deal in its decision with all issues arising unless
it would be prejudicial to do so. 44 The communicant states that this would ensure that all these points
could be considered in any subsequent appeals so that there would be no need for the OCEI to remit
the appeal to the public authority, if the latter’s jurisdictional argument was rejected.

39
Additional information from the Party concerned, 24 October 2018, pp. 7-8, and observer statement by Mr.
Minch, 27 October 2018, p. 1, fn. 1.
40
Party’s response to communication, para. 2.10.
41
Communication p. 2.
42
Communication, p. 10.
43
Communication, p. 10.
44
Communication, p. 4.

7

 50.
The Party concerned refutes the communicant’s allegation concerning “narrow” threshold
jurisdictional points, claiming that the communicant has not provided a definition of this concept.
According to the Party, even assuming that the threshold jurisdictional questions as to whether
institutions are public authorities and whether information requested is environmental information,
those questions are not “narrow” and they are more properly to be seen as “substantive
determinations” on the application of the Convention and the AIE Regulations.
51.
The Party concerned claims that the communicant has not provided any evidence in support
of its allegation that public authorities are deliberately making determinations on threshold
jurisdictional issues with the knowledge that it may take some time for an appeal to be determined. 45
52.
Moreover, the Party concerned claims that a majority of the requests for environmental
information are granted by public authorities while only a very small percentage are appealed to the
OCEI, with still fewer being appealed to the High Court on a point of law. It considers the statistics
concerning AIE requests received by public authorities support its claim (see para. 33 above). 46
53.
Concerning the communicant’s contention that public authorities should be required to deal
with “all issues arising” (see para. 49 above), the Party concerned maintains that it would be illogical
to require public authorities to deal with the substance exhaustively when they believe that a request
falls outside the scope of the AIE Regulations. The Party concerned maintains that this would entail
an unreasonable use of the authorities’ time and resources 47 and that there is no basis in the
Convention for the communicant’s contention on this issue. 48
54.
With regard to the claim of the Party concerned that the communicant has not evidenced and
established systemic intentional abuse by public authorities, the observer the Environmental Pillar
submits that it would be nearly impossible for the communicant to provide evidence of this and the
Party concerned has not established evidence to the contrary. The Environmental Pillar claims that
in any case the issue of substantiation is a distraction; the real issue is that the system as implemented
is vulnerable to the abuse identified by the communicant, and the review process, instead of
preventing it, in fact facilitates it. All a public authority need do is refuse a request, refuse again under
the internal review procedure and then the request will be “neutralized” once it goes to appeal,
because the appeal process takes so long that the information will be irrelevant and useless by the
time a decision is received. 49
Article 9(1) – expeditious
55.
The communicant contends that the Party concerned fails to ensure expeditious review in
accordance with article 9(1) of the Convention, since there is no statutory requirement for the OCEI
to take an expeditious decision. 50 The communicant claims that the OCEI takes more than 10 months
on average to take a decision (see para. 33 above). 51 It points out that these timeframes do not include
the additional two months granted to the parties to appeal against the decision of the OCEI during
which the public authority concerned is under no obligation to release information. 52
56.
Furthermore, the communicant contends that there is no reason for the OCEI to take
significantly longer than the public authority to adopt decisions normally taken within two months

Party’s response to communication, para. 3.2.
Ibid.
47
Ibid., paras. 3.3 and 3.4.
48
Party’s oral submission during hearing at Committee’s 62nd meeting.
49
Observer comments from the Environmental Pillar, 18 October 2018, pp. 4-5.
50
Communication, p. 8.
51
Update from communicant, 9 October 2018, p. 2.
52
Ibid.
45
46

8

 by public authorities, especially when the OCEI has almost 10 years’ experience and access to more
resources than the public authority. 53
57.
The Party concerned submits that neither article 9 of the Convention nor the AIE Regulations
specify a specific time frame for appeal decisions, but merely state that they must be “expeditious”,
meaning that decisions must be reached within a reasonable period of time. 54 It claims that, while
there may have initially been some difficulties with decisions being taken in an appropriate
timeframe, with the improving economic situation of the Party concerned, more resources have been
allocated to the OCEI, allowing for more investigations to be undertaken and decisions issued. 55
58.
The Party concerned claims that the information presented in annex 2 to the communication
to illustrate the length of time for OCEI appeals does not provide a complete picture of the work
completed by that body. That is because it relates only to formal decisions taken, and therefore
excludes appeals withdrawn following the OCEI’s intervention. 56
59.
Furthermore, the Party concerned contends that the procedures followed by the OCEI are
designed to ensure that all parties are afforded appropriate and fair procedures, while also permitting
decisions to be reached without undue delay. The Party concerned highlights the fact that certain
appeals raise complex issues of domestic and European law which require engagement with the
relevant parties and careful assessment, and that in some circumstances it may be necessary to notify
third parties and permit them to make submissions on appeal. 57
60.
Finally, the Party concerned contests the communicant’s assertion that the timeframes for
OCEI appeals should not be significantly longer than the two-month timeframe for public authorities
to consider requests. It submits that the roles played by these two bodies are very different and
therefore not comparable. 58
61.
The Environmental Pillar states that the data on timeframes for review provided by the
communicant cannot be considered “expeditious” under article 9(1). It further submits that this
provision cannot be read in isolation from the requirements of article 9(4). 59 Finally, it claims that
the delays are due to the deliberate decisions of the Party concerned, the most notable being the
decision not to transpose into law a requirement that the OCEI’s review be undertaken within a
prescribed period, or even “expeditiously”, in contrast to the FOI Act. 60
FOI appeals prioritized
62.
The communicant alleges that, because the same person acts in the capacity of both CEI and
Information Commissioner, the OCEI prioritizes requests for information under the FOI Act, which
imposes a four-month deadline. 61 It points out that between 2007, when the OCEI was established,
and 2014, the OCEI was not allocated any funding and had to rely upon resources from the
Information Commissioner’s office. It acknowledges that the situation partially changed in December
2014. 62

Communication, p. 9.
Party’s response to communication, para. 4.16.
55
Ibid., para. 4.16.
56
Ibid., para. 4.12.
57
Additional information from the Party concerned, 24 October 2018, pp. 5-6.
58
Party’s response to communication, para. 4.14.
59
Observer comments from the Environmental Pillar, 18 October 2018, p. 3.
60
Ibid., p. 6.
61
Communication, p. 8.
62
Communication, pp. 2-3.
53
54

9

 63.
The Party concerned states that resources are allocated to the Office of the Information
Commissioner by the Department of Public Expenditure and Reform according to the
Commissioner’s different roles and volume of requests received. 63 A lump sum is granted to the
Information Commissioner who is at the same time the CEI, which he divides between his two
functions as he sees fit. There are 4 investigators and clerical support dedicated to the OCEI. Office
and administrative services are shared between the CEI and Information Commissioner only to
ensure the most efficient use of limited state resources. 64
64.
The Environmental Pillar submits that the issue of resources is not just one of staff, but also
extends to the financial resources necessary to pursue litigation to defend OCEI decisions if
challenged by public authorities and to pursue clarification in courts. 65
OCEI decisions on threshold jurisdictional issues
65.
The communicant challenges the OCEI’s practice of making preliminary decisions on
“threshold jurisdictional issues” (see para. 49 above). The communicant states that because of this
practice two or three rounds of decision-making may be required before a final decision on the
information request is reached. 66 The communicant highlights the High Court’s statement in the
NAMA case that refusals on jurisdictional grounds have the effect of neutralizing requests. The
communicant contends that, despite this judgment, the OCEI continues to make decisions on
jurisdictional grounds and to remit requests to public authorities, thereby neutralizing requests.
66.
The Party concerned asserts that the Convention imposes no requirement on the OCEI to
review an information request’s substantive merits where the request has been determined to fall
outside the scope of the Convention and the AIE Regulations. 67 Moreover, the communicant has not
identified an article of the Convention allegedly breached by the OCEI’s approach. 68
67.
Furthermore, the Party concerned disputes the communicant’s interpretation of the High
Court’s comments in the NAMA case. It states that the Court’s comments were made in the particular
context of its decision refusing NAMA’s petition for an interim stay. Upon its refusal of the stay,
since the Court had determined that NAMA was a public authority under the AIE Regulations,
NAMA should be required to proceed to consider whether the information was “environmental
information”. 69
Appeals to the High Court on a point of law alone
68.
The communicant claims that an appeal to the High Court of an OCEI decision is limited to
reviewing the OCEI’s interpretation of the law and not the acts or omissions of the public authority
concerned. Accordingly, the usual outcome is either the refusal is upheld or an order remitting the
matter to the OCEI for further consideration. Thereafter, the OCEI may also remit the matter to the
public authority for further consideration. 70
69.
The Party concerned contests the argument that the nature of the review provided by a
statutory appeal on a point of law is in breach of the Convention. Article 9 of the Convention only
mandates that there be access to a “review procedure” but does not lay down the standard of review. 71
Party’s response to communication, para. 4.5.
Ibid., para. 4.6.
65
Observer comments from the Environmental Pillar, 18 October 2018, p. 6.
66
Communication, p. 4.
67
Party’s response to communication, para. 3.4.
68
Ibid., para. 3.5.
69
Ibid., para. 5.3.
70
Communication, p. 6.
71
Party’s response to communication, para. 6.2.
63
64

10

 Thus, article 9 does not require courts to have jurisdiction to consider both factual and legal aspects
of an appeal in circumstances where such “full” jurisdiction is vested in an administrative body
created for the purpose reviewing cases concerning requests for environmental information. 72
Accordingly, the review procedure established by the AIE Regulations complies with the
requirements of the Convention.
Article 9(4) – timely
70.
The communicant submits that, taken as a whole, the review of refusals to provide access to
environmental information in the Party concerned is not timely as required by article 9(4) of the
Convention. 73 Since the OCEI and the courts lack the power to order interim measures pending the
review of a refusal of an environmental information request, environmental information requests
remain unresolved even after the public participation procedure for which the information was
requested has closed. 74
71.
According to the communicant, statutory appeals to the High Court take between 12 and 18
months with a further one to two months to deal with ancillary issues such as the wording of any
orders and costs. 75 It asserts the courts do not have the jurisdiction to make a final decision ordering
the release of information. Thus, the usual outcome from a court appeal is either for a refusal to be
upheld or for an order remitting the matter to the OCEI for further consideration, who may in turn
remit the matter to the public authority for further consideration, leading to further delays. 76
72.
The communicant acknowledges there is no serious backlog of cases at the High Court level
but contends there are serious delays at the appellate stage. Due to the backlog of cases in the Court
of Appeal, at the time the communication was submitted, appeals would require more than two years
to be concluded. Even if the Supreme Court does not hear the case, an applicant can typically expect
to wait three to four years for the court procedures to conclude and the best outcome which can be
expected is for the matter to be remitted to the OCEI or the public authority for further consideration,
with the possibility of at least one more round of appeals and remittal. 77
73.
Finally, the communicant claims that the court appeals mentioned in its communication
demonstrate delays. For example, in the NAMA and Anglo cases, despite the final judgment being
issued by the Supreme Court, no action was taken by either the public authority or the OCEI to
progress the environmental information requests (see paras. 40-42 above). It states that Mr. Sheridan,
the applicant, had sought an update while preparing this communication, and thereby learned that the
authorities neither acted to implement the NAMA judgment nor planned to reactivate the Anglo case
proceedings following the NAMA case judgment. 78
74.
The Party concerned maintains that the Convention does not require it to empower the OCEI
to suspend a decision-making procedure involving public participation, nor does it require the courts
to enjoy broader jurisdiction or to be empowered to order interim measures pending review. 79 The
Party concerned contends that the communicant puts forward no basis for the contention that the
Convention mandates Parties to empower national authorities in the manner described. A
determination that there has been non-compliance by reason of the failure to empower the OCEI with
powers of that nature would be to extend the nature and scope of the Convention beyond its terms. 80
Ibid., paras. 6.2 and 6.4.
Communication, p. 8.
74
Communication, pp. 8-10.
75
Communication, p. 6.
76
Communication, pp. 6 and 8.
77
Communication, p. 8.
78
Communication, p. 10.
79
Party’s response to communication, para. 6.8.
80
Ibid.
72
73

11

 75.
The Party concerned furthermore contests the communicant’s assertion that a large fraction
of OCEI decisions are appealed and a high proportion of these cases concern jurisdictional issues. It
states that by 2017 there had been only four appeals to the High Court under article 13 of the AIE
Regulations and one judicial review of an OCEI decision (see para. 51 above). This constitutes a very
small number of appeals given the number of decisions by the OCEI since it was established. 81
76.
The Party concerned maintains that, following the judgment of the Supreme Court in the
NAMA case, the applicant took no action until 18 August 2016 when he contacted NAMA to inform
them that he wished to continue with his access to environmental information request. 82 It states that
NAMA subsequently rejected this access to environmental information request on the grounds that
it was not environmental information. According to the Party concerned, the applicant was informed
that he could pursue the request under the FOI Act and that there has been no further correspondence
from him. 83
77.
The Environmental Pillar submits that the timeframes provided by the communicant cannot
be considered “timely” under article 9(4). It claims that “effectively” providing for access to justice
requires that all of the requirements of article 9(4) apply to all reviews under article 9(1), as these
requirements are necessarily mutually supporting. A review cannot provide for “adequate and
effective remedies” if it is not also “timely,” which should be understood as “within an appropriate
period of time.”. 84 Moreover, it claims that the system as implemented is not fit for purpose, as
evidenced by the length of time required to complete an OCEI appeal and the time to reach a final
decision subsequently. This is compounded by the narrow jurisdiction of the courts which cannot
order the release of information. 85 Finally, the observer points to the lack of a legislative requirement
for timely review of environmental information requests. 86
78.
Observer Mr. Minch, who was the party requesting information in Minch v. CEI, claims that
he did not appeal the OCEI’s 15 February 2018 decision not to release all information originally
requested in his information request of 28 May 2013 inter alia because the plan for which information
had been sought had changed substantially since his original request and the remaining information
was at least 6 years old and thus by then irrelevant. 87
Article 3(1)
79.
The communicant claims that the alleged non-compliance with articles 4 and 9 as a
consequence entails non-compliance with article 3(1). 88
80.
The Party concerned claims that the AIE Regulations establish a clear, transparent and
consistent framework for implementing the Convention, 89 through which public authorities are
obliged to release environmental information within strict timeframes. 90
81.
Environmental Pillar submits that the delays in the review procedures for environmental
information requests contravene article 3(1), as they compromise the integration of the Convention’s
three pillars needed to enable the public and environmental NGOs to protect their interest in a healthy
Ibid., para. 6.9.
Ibid., para. 6.11.
83
Ibid., para. 6.12.
84
Observer comments from the Environmental Pillar, 18 October 2018, p. 6.
85
Ibid., pp. 3-4.
86
Ibid., p. 6.
87
Observer comments from Mr. Minch, 27 October, pp. 1-2.
88
Communication, p. 8.
89
Party’s response to communication, para 2.11.
90
Ibid., para. 7.2.
81
82

12

 environment. 91 The delays are of particular concern for those seeking to participate in time-limited
consultation processes or when deciding whether to apply for judicial review of decisions, acts or
omissions within the 8 week time limit. 92

III. Consideration and evaluation by the Committee
82.
Ireland deposited its instrument of ratification of the Convention on 20 June 2012, and the
Convention entered into force in Ireland on 18 September 2012, i.e. ninety days after the date of
deposit of its instrument of ratification.
Article 4(1), (2) and (7) - “threshold jurisdictional issues”
83.
The communicant alleges that the Party concerned fails to comply with article 4(2) and (7) of
the Convention due to a systemic failure by its public authorities to comply with the maximum twomonth period prescribed in those provisions when requests for access to environmental information
requests are refused on the basis that the entity to which the request is made is not a public authority
or the information requested is not environmental information. In the Irish context, these two issues
are referred to as “threshold jurisdictional issues”.
84.
As regards the allegation that the Party concerns fails to comply with the Convention because
requests are refused on the above grounds, the Committee considers that it does not relate to article
4(2) or (7), as the communicant argues. Rather, a failure to make environmental information held by
a public authority available on these grounds would amount to non-compliance with article 4(1).
However, as explained below, this has no impact on the Committee’s findings in the present case.
85.
The Committee considers that the fact that a proportion, even a substantial proportion, of
requests are refused on the basis that the entity to which the request is made is not a public authority
or that the request does not concern environmental information does not in itself amount to noncompliance with the Convention. Rather, the communicant would need to have shown that those
cases were incorrectly refused on those grounds. The communicant has adduced no evidence to
demonstrate that requests refused on the grounds that they did not relate to environmental information
or were not requested from a public authority were wrongly decided. Thus, the Committee considers
the communicant’s allegation that the Party concerned fails to comply with article 4(2) and (7) of the
Convention due to the proportion of cases refused on “threshold jurisdictional issues” to be
unsubstantiated. For the same reason, the communicant has not demonstrated a breach of article 4(1)
either.
86.
In addition, the Committee does not accept the communicant’s contention that, even where a
public authority rejects a request on “threshold jurisdictional grounds”, it should still be required to
deal with all the substantive points exhaustively. The Convention does not require Parties to impose
such a requirement on their public authorities. Such a step would be illogical, as it would mean that
the Convention imposes obligations regarding requests that have been determined to be outside the
scope of the Convention. Furthermore, this would be an unreasonable use of public authorities’ time
and resources.
87.
Based on the above, the Committee finds the communicant’s allegation that the Party
concerned fails to comply with article 4(2) and (7) of the Convention due to the proportion of requests
refused on “threshold jurisdictional issues” to be unsubstantiated, and the evidence provided does not
demonstrate a breach of article 4(1) on this basis either.

91
92

Observer comments from the Environmental Pillar, 18 October 2018, p. 4.
Ibid., p. 3.

13

 Article 9(1) – expeditious review
88.
Article 9(1), first subparagraph, requires each Party to ensure that any person who considers
that his or her request for information under article 4 has been ignored, wrongfully refused or
inadequately answered has access to a review procedure before a court of law or another independent
and impartial body established by law.
89.
Pursuant to article 9(1), second subparagraph, in the circumstances where a Party provides
for the review of information requests by a court of law, it must also ensure that any person requesting
information 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 Party is not required to ensure access to more than one expeditious review
procedure fulfilling the requirements of article 9(1), second subparagraph.
90.
For the Party concerned, that procedure is the internal review carried out by the public
authority concerned pursuant to article 11(1) of the AIE Regulations, the initial procedure which
must be requested by an applicant seeking review of an unsuccessful information request. A request
for internal review under article 11(1) is free of charge and, being laid down in article 11 of the AIE
Regulations, is “established by law”. Article 11(3) imposes a one-month timeframe on all requests
for internal review, regardless of volume or complexity.
91.
In its findings on communication ACCC/C/2013/93 (Norway), the Committee held that when
considering “whether the procedure is “expeditious” or “timely” under article 9, paragraphs 1 and 4,
respectively, the time limits set out in article 4, paragraphs 2 and 7, are indicative” 93. In line with
those findings, the Committee considers that the time-limit for internal review under article 11(3) of
the AIE Regulations accords with the one-month limit set by article 4(2) and (7) of the Convention.
92.
Consequently, the Committee finds that the legal framework of the Party concerned does not
fail to comply with the requirement in article 9(1), second subparagraph, to provide access to an
expeditious procedure established by law that is free of charge for reconsideration by a public
authority.
Article 9(1) – scope of review
93.
The communicant alleges that the Party concerned fails to comply with the Convention
because the Irish courts do not have full jurisdiction to review the acts or omissions of public
authorities in respect of AIE requests, but only review the decision of the OCEI on points of law.
94.
The AIE Regulations provide for three tiers of review procedures of requests for
environmental information. First, applicants may submit a request for internal review to the public
authority concerned. Second, if they are dissatisfied with the outcome of the internal review, they
can apply to the OCEI. Finally, if they are dissatisfied with the OCEI’s decision, they can appeal to
the High Court on a point of law.
95.
By virtue of Article 12(1) of the AIE Regulations the CEI is an independent and impartial
body established by law, as envisaged in article 9(1), first subparagraph. Pursuant to article 12(5) and
(7) of the AIE Regulations, decisions of the CEI are binding on the public authority holding the
information in accordance with the third subparagraph of article 9(1).
96.
The Party concerned has therefore provided for two review procedures under article 9(1), first
subparagraph: an appeal to the CEI and then to the High Court. The CEI has jurisdiction to carry out
a full factual and legal review of the public authority’s decision. Nothing in article 9(1), first
subparagraph, requires more than one review procedure to be established for the purposes of that
subparagraph.
93

ECE/MP.PP/C.1/2017/16, para. 90.

14

 97.
Accordingly, the Committee finds that the system of the Party concerned, in which the review
of OCEI decisions by the High Court is limited to “points of law”, does not fail to comply with article
9(1) of the Convention.
Article 9(4) – timely review procedures
98.
Article 9(4) requires that the procedures referred to in article 9(1), among other things, be
timely and provide adequate and effective remedies. As noted in its previous findings, when
considering compliance with article 9(4), the Committee considers the system as a whole and in a
systemic manner. 94
99.
Under a scheme such as that of the Party concerned, where the available review procedures
are to be used sequentially, and not as alternatives, 95 the Committee makes clear that the requirements
of article 9(4) apply to each such review procedure.
100. In addition, under article 12(3) of the AIE Regulations not only the information requester but
also persons who would be incriminated by the disclosure of the environmental information
concerned may appeal to the OCEI against the public authority’s internal review decision. Likewise,
under article 13(1) of the AIE Regulations, any party to the OCEI’s appeal, including the public
authority concerned, or any other person affected by the OCEI’s decision, may appeal to the High
Court on a point of law. The information requester will not be a named party to the court proceedings
or any subsequent court appeal. In such circumstances, the Committee makes clear that the rights set
out in article 9(4) apply not only to the review procedures under article 9(1) initiated by the
information requester, but also in the context of any challenge by other persons to set aside the
outcome of those review procedures.
101. Having determined that the requirements of article 9(4) apply both to appeals to the OCEI
and any subsequent appeals to the court regarding the OCEI’s decision, whether initiated by the
applicant, the public authority or any other person, the Committee will consider below whether these
review procedures are “timely” and “provide adequate and effective remedies” including “injunctive
relief as appropriate” under article 9(4) of the Convention.
Timely review procedures
Appeals to the OCEI
102. As regards the OCEI, one positive point emerges from the data set out in paragraphs 34ff.
above: as a result of its increased resources since 2015, the average time taken by that body to publish
decisions on appeals has fallen from 713 days in 2015 to 249 days in 2019. This development is most
welcome. However, that is not the end of the matter.
103. In its findings on communication ACCC/C/2013/93 (Norway), the Committee pointed out
that “time is an essential factor in many access to information requests, for instance because the
information may have been requested to facilitate public participation in an ongoing decision-making
procedure”. 96
104. The working practices of the OCEI fail to take account of this essential factor. The passage
of the OCEI Procedures Manual cited in paragraph 26 above sets out a long list of cases which might
be given priority. Nearly all of them relate to the administrative convenience of the OCEI itself. The
See e.g. the Committee’s findings on communication ACCC/C/2008/33 (United Kingdom),
ECE/MP.PP/C.1/2010/6/Add.3, para. 128.
95
Cf. the Committee’s findings on communications ACCC/C/2013/85 and ACCC/C/2013/86 (United
Kingdom), ECE/MP.PP/C.1/2016/10, para. 76.
94

96

ECE/MP.PP/C.1/2017/16, para. 88.

15

 only relevant item in the list is the penultimate one, in which the OCEI states that account may be
taken of an appellant’s request to be given priority “for a specific pressing reason”. But it then adds
the following caveat: “however, as most appellants will be anxious, understandably, to have their
cases expedited, this ground will apply in exceptional circumstances only and only where resources
allow – time-consuming cases involving a large volume of records and/or complex issues are unlikely
to be considered suitable for expedited processing”. This falls well short of recognizing that time
will be an essential factor whenever information has been requested for the purposes of an ongoing
public participation procedure or when deciding whether to challenge a particular decision before the
courts.
105. Moreover, the average time taken by the OCEI in 2018 and 2019 to publish decisions on
appeals (279 and 249 days, respectively) far exceeds the deadlines set for public participation in
decision-making procedures or commencing court proceedings. In any case, this figure is only an
average, so a significant proportion of the appeals decided by the OCEI take longer.
106. The Committee is aware that the OCEI carries out a full review of the facts and the law, but
that cannot justify systemic delays which prevent members of the public from exercising their rights
under the Convention to participate in decision-making or seek access to justice regarding the
environment.
107. This situation is exacerbated by the fact that no provision of Irish law requires the CEI to take
a decision within a certain timeframe or even to act in a timely manner. In contrast, when the very
same official is acting as Information Commissioner, he or she is required by section 22(3) of the
Freedom of Information Act 2014 (FOI Act) to rule on appeals “as soon as may be and, insofar as
practicable, not later than 4 months after the receipt by the Commissioner of the application for the
review concerned.”
108.
Although the latter provision does not lay down an absolute rule, the disparity between the
two schemes means that, by definition, the person who exercises the two functions is under pressure
to give priority to appeals lodged under the FOI Act. Indeed, in an affidavit sworn in 2014, a member
of staff of the Information Commissioner clearly stated that the office of the Commissioner did
precisely that. 97 Admittedly, the situation may have improved since then because increased resources
have been allocated. However, the fact remains that, even after the allocation of these additional
resources, FOI appeals continue to be resolved significantly more quickly than CEI appeals. In 2017,
63% of FOI appeals were resolved in 4 months and 98% in 12 months. In 2018, 64% of FOI appeals
were resolved in 4 months, and 98% in 12 months. 98 It is difficult to see why, if it was feasible for
the Party concerned to establish a clear deadline for FOI appeals, there should not be one set for
appeals under the AIE Regulations also.
109. Based on paragraphs 103 to 106 above, the Committee finds that, by failing to ensure that
decisions by the OCEI on appeals under the AIE Regulations are timely, the Party concerned fails to
comply with article 9(4) of the Convention.
Court appeals
110. As set out in paragraph 100 above, the requirement in article 9(4) that review procedures for
environmental information requests be timely applies not only to appeals brought by the applicant,
but also to those brought by the public authority or any other person. The requirement also covers
any subsequent appeals to higher courts. The Committee will therefore examine the evidence before
it regarding the timeframes for court appeals under the AIE Regulations below.

97
98

Communication, p 3, and annex 3, paras. 29-34.
Office of the Information Commissioner 2018 annual report, p. 23.

16

 111. The communicant submits that first instance statutory appeals are dealt with according to
Order 84C of the Rules of the Superior Courts and are typically disposed of between 12 and 18
months, with a further one to two months to deal with ancillary issues such as the wording of any
orders and costs” 99 This is not disputed by the Party concerned.
112. The Committee recognizes that many of the cases which reach the courts raise complex
questions, usually as to whether a body is a “public authority” or whether the information sought is
“environmental”. While this complexity obviously goes some way to explaining the length of
litigation, the Committee notes that there is nothing in the legal framework of the Party concerned
to require the courts to deliver their decisions on appeals under the AIE Regulations within a certain
time, or even that they do so in a “timely” manner. In this regard, the Committee notes that rule 7 of
Order 84C of the Rules of the Superior Courts enables the court to make orders regarding timing as
it sees fit. It does not however impose a mandatory requirement of this kind.
113. The failure to include such a requirement clearly has significant consequences in practice. In
the NAMA case, the OCEI issued its decision that NAMA was a public authority under the AIE
Regulations on 13 September 2011. NAMA appealed the OCEI’s decision first to the High Court
and then to the Supreme Court, which finally issued its decision confirming that NAMA was indeed
a public authority on 23 June 2015, nearly four years later.
114. In the Anglo Irish Bank case, the OCEI decided on 1 September 2011 that the bank was not
justified in refusing Mr. Sheridan’s information request on the ground that it was not a public
authority under the AIE Regulations. 100 The bank appealed, whereupon the High Court stayed the
proceedings pending the outcome of the NAMA case. As noted above, the NAMA case did not
conclude in the courts until 23 June 2015, meaning that Mr. Sheridan’s successful appeal to the OCEI
was suspended for four years.
115. Likewise, in Minch v. CEI, Mr. Minch appealed the OCEI’s decision that his information
request was not environmental information to the High Court on 16 February 2015. On 16 February
2016, the High Court quashed the OCEI’s decision. The OCEI and the public authority appealed. On
28 July 2017 the Court of Appeal found that the request indeed concerned environmental information
and on 6 October 2017, remitted the matter to the OCEI to then determine whether any exemptions
from disclosure would apply. The court procedures just to decide whether the request concerned
environmental information, before the OCEI considered any possible exemptions, thus took more
than 2.5 years. 101
116. The Committee considers that in no sense can the above review procedures be considered
timely. Accordingly, the Committee finds that the Party concerned fails to ensure that its judicial
procedures to review access to information requests are timely as required by article 9(4) of the
Convention.
Conclusion on timely procedures
117. Considering review procedures for environmental information requests as a whole, the
Committee finds that, by failing to put in place measures to ensure that the OCEI and the courts
decide appeals regarding environmental information requests in a timely manner, the Party
concerned fails to comply with the requirement in article 9(4) of the Convention to ensure timely
procedures for the review of environmental information requests.

Communication, p. 6.
Communication, annex 2.
101
Additional information from the Party concerned, 24 October 2018, pp. 7-8, and observer statement by Mr.
Minch, 27 October 2018, p. 1, fn. 1.
99

100

17

 Article 9(4) - adequate and effective remedies
Appeals to the OCEI
118. Article 12(5) of the AIE Regulations empowers the OCEI “to affirm, vary or annul the
decision concerned” and also, “where appropriate, require the public authority to make available
environmental information to the applicant”.
119. In 2016, the CEI took 27 formal decisions on appeals under the AIE Regulations. In 19 of
these cases he found that a refusal of a request was (at least to some extent) not justified. In 12 of
these decisions he required the public authority to provide access to some or all of the environmental
information requested. In 9 cases, he remitted the request to the public authority for a new
decision. 102
120. In 2017, the CEI made 35 formal decisions on appeals under the AIE Regulations. In 18 of
these decisions, he found that the refusal of the request was (to some extent) not justified. In 2 of
these decisions, he required the authorities to provide the appellants with access to information. 103
121. In 2018, the CEI delivered 40 decisions on appeals under the AIE Regulations. In 15
decisions, he found that the refusal was not justified either in full or in part and in 9 of these decisions,
he required the public authorities to provide the appellants with access to environmental information.
In 3 cases, the public authorities granted access in full to the environmental information requested
during the OCEI’s review. In the remaining 3 cases, the OCEI remitted the request to the public
authority for a new decision. 104
122. Article 12(5) of the AIE Regulations gives the OCEI the power, where appropriate, to require
the public authority to make available the requested environmental information. On the basis of the
evidence before it, the Committee considers that the CEI does indeed do so in a significant number
of cases. In this regard, the Committee notes that the communicant has not put before the Committee
any examples of cases regarding which it alleges that it would have been appropriate for the CEI to
have ordered the public authority to release the requested information but the CEI did not do so.
123. In the light of the above, the Committee considers that the communicant has not adduced
evidence that the OCEI fails to provide adequate and effective remedies in appeals under article 12
of the AIE Regulations. Accordingly, the Committee does not find that the Party concerned fails to
comply with article 9(4) of the Convention in this respect.
Court appeals
124. In its ruling of 25 June 2015, the Supreme Court upheld the OCEI’s decision of 13 September
2011 that NAMA was a “public authority” for the purposes of the AIE Regulations. When, in August
2016, more than a year later, Mr. Sheridan sought an update from the OCEI regarding the status of
his case, the OCEI informed Mr. Sheridan that “the Supreme Court did not issue any order or
directions following its judgment in the NAMA case. It simply dismissed NAMA's appeal from the
High Court judgment. You may care to contact NAMA directly in connection with your outstanding
AIE request.” 105 NAMA’s appeals were brought against the OCEI, and Mr Sheridan was not named
as a party to those proceedings. The Committee considers that the fact that the Supreme Court’s
ruling lay dormant for more than a year without any action by the courts, the CEI or the public
authority concerned demonstrates a failure by the Party concerned to ensure adequate and effective
remedies for the review of environmental information requests.
OCEI 2016 annual report, p. 86.
OCEI 2017 annual report, p. 88.
104
OCEI 2018 annual report, p. 13.
105
Communication, annex 5.
102
103

18

 125. In a similar vein, following the OCEI’s decision of 1 September 2011 that IBRC Limited
(formerly Anglo Irish Bank) was a public authority under the AIE Regulations, that company
appealed the OCEI’s decision to the High Court. 106 The High Court however stayed the proceedings
pending the outcome of the NAMA case. In its reply of 18 August 2016 to Mr. Sheridan’s request
for an update (see para. 41 above), the OCEI indicated that neither it nor IBRC Limited had applied
to re-activate the proceeding since the outcome of the NAMA case and the High Court’s stay
remained in effect. 107
126. The Committee notes that once again the only parties to the court proceedings were the public
authority (IBRC Limited) and the OCEI. Mr. Sheridan was not named as a party. The Committee
considers the fact that neither the OCEI or the public authority concerned took any action to progress
Mr. Sheridan’s information request for more than 12 months after the NAMA ruling again
demonstrates a failure by the Party concerned to ensure adequate and effective remedies for the
review of environmental information requests.
127. Consequently, the Committee finds that, by maintaining a system whereby courts may rule
that information requests fall within the scope of the AIE Regulations without issuing any directions
for their adequate and effective resolution thereafter, the Party concerned fails to comply with the
requirement in article 9(4) of the Convention to ensure adequate and effective remedies for the
review of environmental information requests.
Article 9(4) - injunctive relief as appropriate
128. The Committee is not convinced by the communicant’s submission that the OCEI and the
court should be able to suspend a public participation procedure pending the outcome of their review
of an environmental information request by a member of the public. Injunctive relief necessarily
involves a balancing of interests, and the communicant has not explained how injunctive relief in
such cases would achieve this in a satisfactory manner.
129. Since the communicant has also failed to explain what other interim relief would be
appropriate in access to information cases, the Committee finds the communicant’s claim that the
Party concerned fails to comply with article 9(4) of the Convention because it does not provide for
interim relief in appeals of environmental information requests to be unsubstantiated.
Article 3(1)
130. Article 3(1) requires each Party, among other things, to “take the necessary legislative,
regulatory and other measures, including measures to achieve compatibility between the provisions
implementing the information, public participation and access-to-justice provisions in this
Convention”. The communicant simply asserts that “as a consequence of” the alleged noncompliance with articles 4 and 9 “there is also non-compliance with article 3(1)”, but does not
elaborate its claim under article 3(1) further. 108 The Committee accordingly finds that the
communicant has not substantiated its claim that the Party concerned fails to comply with article
3(1) of the Convention.
Article 3(2)
131. The communicant claims that public authorities sometimes refuse access to environmental
information knowing that the matter may proceed through subsequent levels of review, due to which
there will be a delay of two to three years. While the communication does not refer to article 3(2),
the Committee considers that the communicant’s claim would most naturally concern the obligation
Communication, annex 2.
Communication, annex 5.
108
Communication, p. 8.
106
107

19

 that provision places on each Party to endeavour to ensure that officials and authorities assist the
public in seeking access to information. Given the serious nature of this allegation, however, cogent
evidence would be required to support it. As the Party concerned points out, no such evidence has
been forthcoming. 109 Accordingly, the Committee finds the communicant’s allegation to be
unsubstantiated.

IV. Conclusions and recommendations
132. Having considered the above, the Committee adopts the findings and recommendations set
out in the following paragraphs:

A. Main findings with regard to non-compliance
133.

The Committee finds that:
(a) By failing to put in place measures to ensure that the OCEI and the courts decide appeals
regarding environmental information requests in a timely manner, the Party concerned
fails to comply with the requirement in article 9(4) of the Convention to ensure timely
procedures for the review of environmental information requests.
(b) By maintaining a system whereby courts may rule that information requests fall within
the scope of the AIE Regulations without issuing any directions for their adequate and
effective resolution thereafter, the Party concerned fails to comply with the requirement
in article 9(4) of the Convention to ensure adequate and effective remedies for the review
of environmental information requests.

B. Recommendations
134. The Committee, pursuant to paragraph 36 (b) of the annex to decision I/7 of the Meeting of
the Parties, [and noting the agreement of the Party concerned that the Committee take the measures
requested in paragraph 37 (b) of the annex to decision I/7,] recommends that the Party concerned
take the necessary legislative or regulatory measures to ensure that:
(a) Appeals under the AIE Regulations to the OCEI or the courts, whether commenced by
the applicant or any other person, are required to be decided in a timely manner, for
instance by setting a specified deadline.
(b) There are mandatory directions in place to ensure that, should a court rule that a public
authority or an information request falls within the scope of the AIE Regulations, the
underlying information request is thereafter resolved in an adequate and effective
manner.
___________________________

109

Party’s oral submissions at hearing at Committee’s 62nd meeting.

20