Untimely processing of AIE request appeals and review fail to comply with international law

Source: Greennews.ie

10 August 2020 

The time taken by Ireland’s appeal process and Court review for Access to Information on the Environment (AIE) requests is failing to comply with international law, draft findings have revealed. 

The findings were published by the Aarhus Convention Compliance Committee (ACCC) who released them alongside draft recommendations today in regards to a complaint filed by solicitor Fred Logue on behalf of Right to Know, an Irish non-governmental organisation concerned with promoting and defending access to information from public authorities to the public. 

The Committee found in its draft report that Ireland had failed to ensure that the appeals conducted on AIE requests, and associated reviews in the Courts, are conducted in a “timely manner” that is necessary to meet with the standard required under the Convention’s requirements on access to justice.

Therefore, the Committee finds Ireland is failing to comply with the international Aarhus Convention which came into effect for the State in September 2012. 

The AIE system, explained 

The AIE system is, in effect, about the rights of both the public and environmental NGOs to environmental information and about the obligations of public authorities to provide it. 

This includes both the dissemination of information by public authorities and responding to requests for additional information, which are commonly referred to as AIE requests. 

The system is independent from Freedom of Information (FOI) requests, and the two differ substantially as AIE is underpinned by both EU law and the Aarhus Convention, while FOI operates only under national law. 

Members of the public and environmental NGOs can make an AIE request to a public authority, to seek environmental information – which is defined in law. 

The public authority can provide access to the information requested, or deny it entirely or partially. The requestor can then seek an internal review of the decision. 

The first stage request should take no longer than a month, with a further 30 days allowed for very large or complex requests. 

If the applicant wants to appeal a decision on an AIE request, the internal review is limited to a month. If they are still not satisfied with the decision and information provided, they may then appeal to the Office of the Commissioner for Environmental Information (OCEI). 

Once at the OCEI stage of appeal, the ACCC said, the issue was with the delays experienced. 

The Committee specifically found that Ireland had failed to ensure the appeals and any related review by the Courts is performed in a “timely manner”. 

Irish legislation does not specify a timeframe or deadline by which an AIE appeal or Court review must be addressed, whereas such time constraints do exist for an FOI request. 

However the Convention does require that such reviews are “timely” and also that remedies provided are “adequate and effective”, and it was on these three characteristics or qualities for reviews of AIE requests that the Committee has indicated draft findings of non-compliance.

The importance of the draft findings “cannot be over-stated” 

The decision, while in draft format and having yet to be finalised, will hopefully have a “major impact on access to environmental information”, Ken Foxe of Right to Know told The Green News.

The benefits should be felt by NGOs, journalists, and, “just as importantly, members of the public,” he said.

AIE has been treated as the “poor relation of information access” in Ireland for far too long, Mr. Foxe added.

He also stressed that it will be up to the government to “provide resources to the OCEI so that they can meet their obligations”, once the findings are adopted. 

Attracta Uí Bhroin Photo: Photocall Ireland

The draft findings also carry an importance that “cannot by over-stated”, according to Environmental Law Officer for the Irish Environmental Network (IEN) Attracta Uí Bhroin. 

Environmental information is the foundational element of the Aarhus Convention and for “good reason”, Ms Uí Bhroin told The Green News.

Information provided via AIE is crucial, Ms Uí Bhroin said, as it has the capacity to inform public participation, submissions, and challenges to decisions made by public authorities. 

“Given the importance of the environment for human health and wellbeing – those rights and associated obligations are consequently what is set out in a Human Rights convention – the Aarhus Convention,” she said. 

Having a functional and timely system of AIE requests, according to Environmental Pillar Co-ordinator Karen Cisielski, allows the State and its public authorities to “embrace the fact that we are all in this together and share responsibility for the environment”.

“It was important that the Environmental Pillar weighed in to support the elaboration of the issues, and their impacts to support the deliberations of the Committee, as AIE is a core tool for our members,” Ms Cisielski added. 

Following a brief period to comment and identify any necessary corrections to the draft report, it will be finalised, and submitted to the Meeting of all the parties to the Convention in October 2021 for their endorsement and adoption.  

To bring itself into compliance, Ireland will have to determine what “timely” means in an Irish context. 

The State will need to implement appropriate steps to ensure the specified reviews are timely, and also that the courts can provide for effective and adequate remedies, which was a further issue of non-compliance according to the Committee. 

It can move to do so before the meeting next year, putting Ireland in a better position when the matter is reported on amongst a community of international peers.

The State has until September 25th to respond to the draft findings. 

The Green News will be watching closely to see how Ireland responds to the draft findings, and how it proceeds following the findings once finalised. 

About the Author

Kayle Crosson

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