Dáil Éireann debate -
Wednesday, 16 Jun 1993

Vol. 432 No. 4

Access to Information on the Environment Regulations, 1993: Statements (Resumed).

Mrs. Doyle

At the outset I welcome the fact that Government time has been made available to discuss these regulations, which were published on 20 May last and laid before the Dáil the following day. However, the refusal of the Government to take my motion annulling the regulations in Government time is a negation of democracy and is all the more serious when one considers that more and more important legislation is being implemented by way of regulation, thereby denying parliamentary debate on the issues involved except in Private Members' time. As there are now three parliamentary groups sharing the Opposition benches, the division of Private Members' time could prevent and exclude an annulling motion being taken within 21 sitting days, as required by law.

The question must be asked, as Ministers assume for themselves more and more delegated authority and the regulation procedure becomes a frequently used tool of legislation, whether the use of Private Members' time, when limited time is available to the Members of the Opposition, could conceivably be considered as an adequate parliamentary response to so many vital issues. I contend that it is not, and the denial of a proper debate during Government time further exacerbates the democratic deficit, the gulf between the expectations of the electorate and the ability of politicians on all sides to respond to their needs.

This Government is feeding and fuelling a growing cynicism among the public through their refusal to open up debate on regulations and by hiding behind the coat tails of precedent and outmoded practices which perhaps had some validity when there were one or two Opposition groups and the Government only resorted to statutory instruments and regulations to effect minor changes to complicated legislation. The advent of EC directives to be transposed into domestic law in each member state by way of regulation has so increased the frequency of the use of the regulation procedure that to continue to deny debate on the issues involved has serious constitutional implications way beyond the area dealt with by the High Court in the case involving clenbuterol in March last. Nonetheless, I welcome this limited opportunity to make a statement, even though we cannot move our motion or have it voted on.

The great number of exemptions from the EC Directive on Access to Information on the Environment, the institutionalising of official secrecy by giving public authorities the right to withhold information and the blatant negation of public participation in the planning process amount to an abuse of democracy and confirm the worst fears about this autocratic Government with its large majority.

The Minister for the Environment, Deputy Smith, who cannot be with us this evening — I welcome the Minister of State, Deputy Browne — has taken the minimalist approach to the EC Directive and has misled the public, like his two Ministers of State, by stating that he is legally obliged to exempt An Bord Pleanála from the provisions of the regulations. This is incorrect. Even if we agree that An Bord Pleanála is a judicial body — a quasi-judicial body at best — the EC Directive does not require judicial bodies to be exempt. While the directive, which the regulations purport to implement, does not require judicial bodies to be covered, it does not prevent member states from extending national freedom of information provisions to bodies such as An Bord Pleanála. This is a missed opportunity. The Government may be entitled to exempt An Bord Pleanála from the regulations, but it is not obliged to do so, as the Minister would have us believe. He has tried to mislead the public by suggesting that he had no choice in the matter when he had and he chose to keep the light out, to refer to that much publicised phrase of the Taoiseach.

There is no doubt that in natural justice a third party appellant should be entitled to see a developer's response to an appeal in addition to the judgment of An Bord Pleanála in relation to the outcome. If we are trying to pretend that An Bord Pleanála is a judicial body — I contend that the real judicial bodies are the High Court and the Supreme Court — it should respect the law on natural justice and the right of third parties, particularly those against whose interests the judgement may be made, to know the reasons. In the Supreme Court each judge gives long and detailed reasons on why he came to his decision. We are still not allowed, however, to know the reasons An Bord Pleanála reached certain decisions. What is the Government afraid of? Is it because the board does not have to accept the inspector's report? Under these regulations we will continue to be denied access to the inspectors' report in a particular case and to the board's final decision. We should consider what happened in relation to the Tara mast and other cases in more recent times. How much longer will access to natural justice in this area be denied side by side with public participation in the planning process?

There are other major deficiencies in the regulations. The two month time frame within which a planning authority must respond to a request for information compares very unfavourably with the ten day time limit in, for example, the United States and Denmark for information in similar legislation. It also compares very unfavourably with the 30 day period within which a third party objector must submit a planning appeal to a local authority. If a planning authority can take two months to respond to requests for information while an objector must lodge his appeal within 30 days, there is a negation of natural justice and a refusal to allow full public participation. I ask the Minister to look at the anomaly in this area. If a local authority can take two months to respond to a request from a would-be objector, while an objector has only 30 days within which to submit an appeal to An Bord Pleanála, this does not add up. One can see how this two month time limit might be used in a mischievous way.

Let us not be green about this issue. Both the Minister and I have been members of local authorities for a considerable time and we know that not all local authorities are as forthcoming with information as we would like them to be. These regulations will not insist that local authorities are forthcoming with information if they have two months within which to respond to requests for information while an objector has only 30 days to submit that information as part of an appeal to An Bord Pleanála. This makes no sense. The Government has missed the opportunity to let in the light.

There are no clear guidelines on the price policy and charges for information. I see a major risk of price barriers being put in the way of third party objectors and members of the public who may not be in a financial position to pay the local authority charges for information. It is reasonable to ask the public to pay for photocopying, but it is not reasonable to ask them to pay the costs of research carried out by the staff. Public servants are there to serve the public. Yet the Minister is suggesting that the local authority can charge the public for the time spent by staff in obtaining the necessary information. It may be that local authorities are under-resourced in terms of staff numbers. This issue needs to be looked at. Nevertheless, the public should not be asked to pay for an inadequate local government service, particularly in relation to planning, development and environmental control generally.

I welcome the guidelines, which attempt in a user friendly way to explain both the EC Directive and the regulations, which respond so poorly to that excellent EC Directive. The regulations do not apply where information is required to be made available under any other statutory provision. Again, there seems to be a major letoff, so to speak, in this area. Mining, prospecting and foreshore licences may become less transparent as a result of the publication of these regulations. According to the guidelines, the Planning Act provisions will remain the same. However, the public and third parties generally are effectively allowed only the power of inspection under the Planning Acts. There is no power of inspection and retrieval. This issue should be looked at.

An Leas-Cheann Comhairle

The Deputy has one minute left.

Mrs. Doyle

I was not told that there was a time limit on the debate.

An Leas-Cheann Comhairle

Each Deputy has a time limit of ten minutes.

Mrs. Doyle

I did not know about the time limit. As there will not be many Deputies offering, perhaps you will allow me a few extra minutes.

An Leas-Cheann Comhairle

Under an order of the House of this morning, each Deputy has ten minutes only.

Mrs. Doyle

I will continue. I will not waste time arguing with you, a Leas-Cheann Comhairle. Perhaps you could be generous and give me a few extra minutes. Apart from the Deputies in the House, there will be no more contributors to the debate.

An Leas-Cheann Comhairle

There is quite a number of Deputies in the House and there is a time limit on the debate.

Mrs. Doyle

Reference is made in the guidelines to international relations and a discretionary reason for the refusal of information. What is the position in regard to Sellafield and the 19 or so reactors along the west coast of the United Kingdom? Can we not raise questions in regard to discharges from Sellafield? If we do, will we disturb international relations? Matters which are the subject of preliminary investigation proceedings should not be exempt. I agree that sub judice issues should be exempt, but not preliminary investigation proceedings. In regard to the confidentiality of the deliberations of proceedings by public authorities, who decides what is confidential? Commercial and industrial confidentiality is nonsense since the component value of emissions will have to be declared under effluent and discharge licences. Where emissions have entered the public domain, information about those emissions must also be considered part of the public domain. The guidelines refer to “requests which would place unreasonable demands”. Who decides what is an unreasonable demand?

The regulations before us, which are such a poor minimalist response to the EC Directive on Freedom of Access to Information on the Environment, are a major disappointment and will not increase the level of transparency in the planning process. If anything, the release of information to the public will be more discretionary than ever. The Government has missed the opportunity to increase public participation in the planning process, to lift the veils of secrecy and to allay the fears, perceived or real, which are causing so much concern to people today. Planning objections are 50 per cent perceived and 50 per cent planned, so to speak. Lifting the veil of secrecy would reduce both the workload of An Bord Pleanála and the objection rate generally. So much for Fianna Fáil's commitment to let in the light. So much for the Labour Party's promise of open Government. On the first occasion they had an opportunity to live up to their promises, they pulled down the blind firmly.

Ms Keogh

In his speech the Minister said that the regulations were being introduced against a background of changing attitudes in relation to the role of information in environmental protection and increased efforts in recent years by public authorities to make more information freely available. The Minister could have fooled me. At one point it seemed that regulations to implement the provisions of EC Directive 90/313 would never be introduced. Together with a number of environmental organisations, I was very pleased when the Minister, in reply to a parliamentary question, said that he was going to introduce regulations to implement the provisions of the EC Directive. However, I should have known better. Instead of wholeheartedly espousing this Directive, once again the Government has given a minimalist response which has only served to further alienate all of those groups who had sought a more open approach and who believed in the transparency promised by the Government and who now feel totally betrayed.

Why should this be so? Why has the Minister decided to surround public authorities with a shroud of secrecy? The Minister's interpretation of the Directive is regarded more of a hindrance than a help. It avails of exemption options rather than availing of the opportunity to reassure those who foresaw exactly what could happen and which, unfortunately, has happened. These regulations are a lost opportunity. Instead of providing for freedom of access to information on the environment the Government seems determined to give as little information as it possibly can, to escape like a thief in the night. What kind of signal does this send out to ordinary people? What kind of confidence can people have in a Government which obviously has no confidence in them and their judgment? How can we improve environmental protection if we do not know and cannot find out what is going on? These regulations are not sufficient to enable this to happen.

Many environmental groups are outraged by what they regard as a cynical act on the part of the Government. These groups were ready to respond positively to the implementation of the provisions of the Directive in an open and positive manner. The refusal in recent times to release information to environmental groups, information which would be released as a matter of course in other EC countries, did not give grounds for hope of greater openness on the part of the Government. Unfortunately, those fears were justified. Both Deputy Doyle and I put down motions calling for a debate on these regulations. There are no prizes for guessing our reaction to the regulations. While we welcome the opportunity to debate our reactions in the House, as we all know this debate is a sham. We are merely expressing our points of view and we know that nothing will be changed. I for one regret that my party did not have the opportunity in Private Members' time to put down a motion on these regulations. Obviously, there are restrictions on Private Members' time; but at least we would have forced the Members of the Labour Party to vote for our motion. These regulations are a negation of all that the Labour Party stands for. What is the role of that party in all of this? The electorate believed that the Labour Party would bring greater accountability to Government. Before now the Labour Party could blame Fianna Fáil but it is not facing up to its responsibilities in Government. The Labour Party may have a Minister of State in the Department of the Environment, but it certainly has no environmental policy and no obvious active role in formulating policy, if this is anything to go by. If the Labour Party still claims to have an environmental policy, where is its input to the interpretation of this Directive?

During the debate last week on the Local Government (Planning and Development) Bill we had some discussion on the role of local authorities in the planning process. I asked at that time that there be an appeals process to An Bord Pleanála so that the local authority's decisions could be further examined and, if necessary, appealed. The Minister, Deputy Smith, did not think much of that suggestion so I am not at all surprised by the fact that we are still restricted from gaining access to information on an appeal to An Bord Pleanála.

I do not agree with Deputy Doyle's reference to the guidance note on access to environmental regulations. While it is a very nicely produced document, it is quite confusing. If those of us with some degree of expertise in the area of the environment find it confusing — I think under normal circumstances I have a reasonable grasp of difficult documents — I believe the public will find this document is not user-friendly. It is complex and complicated. I appreciate that a further leaflet to explain the regulations may be issued by the Minister but I hope that will be writen in simple, plain English and follow a logical sequence.

Full implementation of article 2, which concerns information in relation to the environment, should mean that the public authorities should take a pro-active role and there should be a generous and not a minimalist interpretation of the regulations. It should not be left up to the detective skills of environmentalists or the public in general to extract information but the facilities needed should be established. I believe that a great deal of what the Minister says is aspirational and I wonder if the public authorities will take his suggestions on board. I think they will need to be directed to take these suggestions on board. I question why An Bord Pleanála is not included under the definition of a public authority. The Minister's claim that he is forced by the Directive to exclude An Bord Pleanála is not correct. I think he is applying the old Civil Service rule of thumb that what is not expressly allowed is excluded. The fact that he is not required to include An Bord Pleanála does not mean that he should seize the opportunity to opt out. Article 130(t) of the Treaty states that member states have the right to provide more stringent rules to provide access to information. Why does the Minister not apply that rule?

We all know that An Bord Pleanála is at the centre of many environmental controversies so its exemption is seen as a mockery of the notion of transparency in the planning process. The central role of An Bord Pleanála in environmental and planning matters means that the Directive on freedom of access to information will be severely limited. At the very heart of the matter, where most people expect a commitment to openness, there is a total and abject failure by this Government. There is a definition of public authority in section 3 of the Environmental Protection Act and An Bord Pleanála should be included as a public authority. Any person should be entitled to obtain an inspector's report where there is a planning appeal without having to go through costly legal procedures.

These regulations are minimalist and do not confer the right to know on the general public. Article 3 states that member states shall ensure that public authorities are required to make available information in relation to the environment and member states shall define the practical arrangements under which such information is effectively made available. I await with interest to see if the Minister's request that public authorities be pro-active is taken on board. The Minister puts more trust in the public authorities than is credible.

I think it is ridiculous to allow a period of two months in which to respond to a request for information. I believe that this will give time for a cover-up rather than an opening of the system. The timescale should allow people to avail of their full constitutional rights in relation to planning. It would be a step in the right direction to follow the American example.

I think the whole notion of charges for access to information is crazy. Will this be another local charge? Access to information should be freely available in all senses of the words. The question of "reasonable charges" covers a multitude. There should not be methods of preventing a person from obtaining information particularly because of the charge involved. The supposition seems to be that an individual or group will have to pay a fee to extract information which should be readily and freely available. I am very disappointed with these regulations and I regret that we do not have the opportunity to vote on a motion to annul them.

Mr. Sargent

The guidance notes on Access to Information on the Environment, Regulations, 1993, should have been called partial access to information on the environment regulations or, indeed, minimal access to information on the environment regulations. Freedom of access to information was one of the very first policies formulated by the Green Party when it was then known as the Ecology Party in the early eighties. Being part of the worldwide Green movement, the Greens in Ireland have always been aware of the greater access to information that exists in other countries and that freedom can ensure responsive and community wide action to protect the environment in particular.

The fatal consequences of not having information on pollution of the environment came home to many for the first time in April 1986 following the Chernobyl accident. Many have said that measures against the radioactive fall-out would have been much better and more effective if adequate information had been provided from the beginning. Before the Chernobyl accident, the UK Royal Commission on Environmental Pollution in 1984 ruled that freedom of access by the public to information collected or compiled by the authorities responsible for controlling pollution in exercising their statutory powers ought to be guaranteed. Further back, freedom of information legislation was brought into Denmark in 1970, by Luxembourg in 1977, by France in 1978, by the Netherlands in 1981 and by Italy in 1986. Greece, Spain and Portugal all have constitutions that incorporate a citizen's right to access to administrative information. The reality is that in Ireland we have an enormous amount of catching up to do to help in this regard. Directive 93/13 was adopted by the Council unanimously and is based on Article 130 (s) of the Treaty of Rome. This enables the member states to introduce or maintain far more stringent conditions and measues to ensure freedom of information concerning the environment. In Ireland's case the Green Party, An Comhaontas Glas, believes that the Directive has not been properly implemented in a number of ways, particularly because it implicitly excludes An Bord Pleanála from having to provide information to the public.

It hurts me to say this, but I believe that the overriding principle in the Minister's implementation of EC Directive 93/13 on freedom of information on the environment is to maintain secrecy in Government. Article 130 of the Treaty stresses that we can implement far more stringent measures. As I said earlier, we are catching up from a long way back. The Directive states that member states must make available all information available to the public. The Directive lists many reasons member states may, in certain circumstances, refuse to make certain information available, one of which is that it might be more damaging to the environment, but this has been abused greatly.

One example which comes to mind is the case of a nest of a peregrine falcon. From the point of view of freedom of information on the environment, we should tell every gangster around exactly where that nest is so that he can pillage it, take the chicks and sell them to Saudi Arabia. Obviously that is not intended in such a Directive. The Minister has implemented all restrictions that he may — not that he has to — under the Directive and the Green Party believes he has gone way beyond the legal bounds of the Directive. In fact, the Green Party are making a formal complaint to the European Commission on the implementation of the Directive. I suspect unless the regulations are brought back to the drawing board we will be open to all sorts of legal challenges.

Take for example the two month timeframe within which a public authority must respond to a request for information. This is unduly long and compares poorly with timeframes in Denmark or the US, both of which have a ten day response requirement. If a ten day response requirement is good enough for the Danes why is it not good enough for us? In the US, an appeal against a refusal of information must be dealt with within 21 days. We must bear in mind that an ordinary person has only one month or, if one takes the postal system into account, three weeks in which to appeal a decision.

Delays nullify the Directive because information which is too late is very often of no value. Exclusion, by implication, of An Bord Pleanála from the regulations will ensure that many environmental concerns never come to light. Already files with major environmental implications have been refused to the Green Party in relation to landfill sites, road proposals, pollution monitoring, building conservation and planning. Only last month the environmental organisation, Earth-watch — even though the Directive has direct effect throughout the Community from 1 January — was still refused copies of planning files relating to the proposed new ESB power station at Poolbeg in Dublin. Even if the regulations are annulled local authorities are still obliged, under the Directive, to provide the information. There is no point in saying this would damage the process. The Directive is in place for the EC.

Already the possibility of exorbitant charges for documents is a possibility and it is a sinister, controlling device against public access to information. I am aware that students have been asked for £25 just to look at an old file and the regulations ensure no real control on this de facto information barrier. In the same way as some public bars exclude people on low incomes by charging exorbitant prices, so local authorities can ensure that only very successful solicitors or big developers can afford access to the information which is intended to be available to everyone, including those on low incomes.

Surely the Labour Party finds this barrier to information, especially for those on low incomes, absolutely unacceptable. Certainly the culture of secrecy which these regulations reinforce in a number of ways is not only unacceptable to the Green Party but also infuriating. It is infuriating to recall the platitudes about open Government from Fianna Fáil and promises of freedom of information from Labour before the election. Now we are presented with a minimalist set of regulations, full of ambiguities, which avail of every exemption option laid down to ensure secrecy wherever possible. Even the words "freedom of" in the Directive have been deleted and substituted by the word "access". The Minister for the Environment, Deputy Smith, and the Minister of State at the Department of the Environment, Deputy Browne (Wexford), know well they can withdraw these regulations without upsetting anyone as the EC Directive has effect from 1 January. I urge the Minister for the Environment to appreciate that the environmental problems facing this earth, such as the greenhouse effect, an accident at Sellafield and contaminated water supplies, all require every citizen to be informed and to take timely action. How can people be informed and so take timely action if the current regulations restrict and delay access to essential information?

Mr. Costello

I am grateful for this opportunity to discuss the issue of access to information. I should like to refer to one or two of the points made already. We should remember that it was the Labour Party who in the seventies introduced the procedure which gave rise to the establishment of An Bord Pleanála. The planning files ended up on the desk of the then Minister for Local Government, the late Deputy Tully, who agreed to the establishment of an independent body which would be free from any allegation of political influence. This was the appeal mechanism established to ensure that any planning application would go to an independent body and that they would have the final decision. That was a very important development almost 20 years ago.

Mrs. Doyle

It was a Government decision at the time.

Mr. Costello

Naturally it was a Government decision. Everything has to be submitted to Cabinet before it becomes legislation.

Mrs. Doyle

It was a Government decision.

Mr. Costello

It was very much part and parcel of Labour Party policy. I gave due thanks to Deputy Doyle and the Fine Gael Party for their participation in the event.

Mrs. Doyle

Thank you very much.

Mr. Costello

The previous Government introduced the legislation which limited access by third party objectors and appeals to An Bord Pleanála effectively to three weeks. Deputy Keogh asked where were the Labour Party in terms of accountability in relation to An Bord Pleanála giving information to the public and so on. The Progressive Democrats were part and parcel of a legislative decision to limit the ordinary member of the public to dealing with questions of appeal to planning applications. Deputy Sargent was correct in saying that two months is the period allowed to a developer to process an application and that three weeks to a month is the period within which any member of the public may make an appeal. Surely a local authority or a Government Department should be able to respond within a period of less than two months. I would ask the Minister to look again at that timeframe because freedom of information has to do with availability of information when it is needed. There is no point in providing information if at the time it is provided the deed is done or the damage is caused to the environment and so on.

In general I welcome the provisions of the regulations. Information relating to the environment is defined in section 110 of the Environment Protection Agency Act, 1992, as follows:

..... any available information in written, visual, aural or database form on the state of water, air, 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 programmes.

That is a very broad definition. The bottom line in regard to the EC Directive is that every member of the public should have access to environmental information on request without having to prove that one has a specialised interest in the matter. We are all aware from dealings with local authorities and other such bodies of the difficulty in gaining access to sensitive information, whether it concerns smog levels, Sellafield, a hospital incinerator or other waste disposal facilities. I am delighted that this matter is being removed from the whim of public authorities and welcome the fact that every member of the public will now have access to environmental information.

Mrs. Doyle

If they can afford to pay for it.

Mr. Costello

We must not forget those basic points when criticising the regulations.

The EC Directive was introduced in 1990 and I regret that it has taken so long to implement it. In fact, I understand we were obliged to have it implemented by December 1992, and, therefore, the previous Administration should have implemented it. Nevertheless, this Administration has done so without delay.

The availability of environmental information has been unsatisfactory in the past. People could gain access to information only through the relevant agencies, local authorities, the Department or the environmental information service which was established recently. I welcome the fact that that service has a national database and library facility. While I accept that the Department publishes an environmental bulletin from time to time, the environmental information service is the first body to make information readily accessible to the public and the public are crying out for such information.

I agree that some discretion should be exercised in regard to requests for information. If information relates to an individual, the consent of that person should be sought before making the information available. It is reasonable to expect that if information is supplied voluntarily by a third party, the consent of the third party would be necessary before such information is made available. It is only in exceptional cases that a request is made for information which might cause environmental damage. As Deputy Sargent stated, in the recent case relating to the peregrine falcons, information made available through the media could have led to the killing of one of those falcons. Local authorities should be obliged to exercise discretion when supplying information involving an endangered species or other sensitive environmental information, because people could be careless, ruthless or merely aiming to make a quick financial return.

I would like the Minister to examine the matter of the discretionary grounds on which information may be refused. I understand from a newspaper article that the Minister indicated the matter would be reviewed within six months, depending on the number of complaints and the type of abuse arising during that period. Those discretionary grounds could cover a multitude of areas. The document entitled Access to Information on the Environment states that information relating to anything which is the subject matter of legal proceedings, formal inquiries or preliminary investigations may be refused. Information relating to the confidential deliberations or proceedings of public authorities, information on commercial and industrial confidentiality, including intellectual property, material still in the course of completion and unreasonable requests also may be refused. There is far too much scope for abuse under that heading. I would prefer if that area was covered under the heading “Partial supply of information”. In other words rather than leaving it to the discretion of the authority, there should be partial accessibility and where there might be an element of doubt, it would be open to the person seeking the information to negotiate with the authority. Of course, people have the right of appeal to the courts, the Ombudsman and directly to the body. I would like greater transparency in the publication of the regulations. We are bound to implement EC Directives, but we are not bound to be as narrow as the Directive proposes. We should at all times show generosity towards our citizens in the implementation of directives.

Mr. Hughes

It was my county colleague, Commissioner Pádraig Flynn, who in his capacity as President of the EC Council of Environment Ministers signed the Directive on Freedom of Access to Information on the Environment on 7 June. I welcome the opportunity to speak on the Access to Information on the Environment Regulations which came into force at the beginning of this year. The buzz words in the past few years have been "environment" and "environmental protection" because of the necessity to implement pollution control measures to bring about a green environment with clean air and water. In the fifties, sixties and seventies we looked enviably at the European countries who had the ability to industrialise their cities and towns, mechanise their farms and achieve production levels per worker higher than we had in our underdeveloped country. Countries such as Spain, Portugal, Italy, France and Greece built up major tourism industries along their coastlines. However, time rolls on and when we thought we were near the bottom of the European development league, our underdeveloped resources are in fact a national asset. What appear to be inherent weaknesses in our economy, such as vast open spaces, a lack of industrialisation, clear air and water and an underdeveloped coastline, are what many European countries would dearly love to have. Some time ago it was speculated that the Spanish authorities would compulsorily acquire apartments and holiday complexes in portions of their coastline due to over-development and gross pollution; any one looking at a map of the Mediterranean sea would see vast sections designated as unsuitable for swimming and leisure activities.

There is also an increasing awareness of the potential of development to cause pollution here and while fortunately, we have avoided the worst examples of development, people are increasingly questioning certain industrial processes etc. as it is the wish of everyone in Ireland to ensure that we learn from the mistakes made by others. How often have we seen persons and community groups compelled to rally together to object to the granting of a planning permission with subsequent long drawn out correspondence, oral planning appeals and, in some instances, promoters withdrawing due to the length and cost of the planning process? Many of these appeals were brought out of fear of or lack of information about the possible effects of the development on their locality. If there were more openness and access to information, the bitterness which has sometimes been created in communities could have been avoided.

Increasingly there are conditions attached to planning permissions requiring the monitoring of emissions, the necessity to retain information gathered and the making available of records for inspection generally to the planning authority or their designated agents. This information will now be available to members of the general public who may wish to build their store of knowledge as to how certain activities either in their own area or in other parts of Ireland or for that matter, Europe affect their quality of life. It is imperative that people have the fullest confidence in the planning process and, more important, in the planning control process because once an industry is established and is providing valuable employment in a community, the local authority is acting with its hands tied behind its back when it comes to the rigid control and monitoring of the planning conditions.

In the main, no local authority can easily move against an operation that gives employment in a region and, accordingly, when a similar type of process is started elsewhere in the country, the promoters of that process will point out the excellent operation being carried on there which is not the subject of any action by the local authority. That is not to say that that operation is not without blemish for the local authority is operating with its hands tied when it comes to taking decisive action which may have the result of closing down an industry or result in prohibitive costs to control the pollution being caused. On the basis that similar regulations operate in other European countries, the person making the request for information need not be a citizen of or resident in Ireland or, for that matter, in the European Community and, accordingly, valuable comparisons can be obtained and the effects of various industries in a localised situation in Ireland can be monitored.

The regulations as drafted not only cover local authorities but, more importantly, a wide range of authorities exercising regulatory or management functions in relation to the environment, including Government Departments, the National Radiological Protection Institute, regional and central fisheries boards and the proposed Environmental Protection Agency. The regulations are drafted to ensure that requests for information are dealt with promptly and a register maintained of all such requests, and any refusals of such requests for information will be the subject of an internal review procedure. The interpretation of the regulations, and the prohibitions and restrictions in regard to the dissemination of certain types of information will be a matter for the courts in the event of dispute.

There is one point which I would like to make about matters which are sub judice, which are or have been under inquiry or which are the subject of preliminary investigation proceedings. The ground for refusal of information under this heading is discretionary and it would greatly concern me that the authorities covered by these regulations would refuse to disclose information on the basis that they were carrying out preliminary investigations to lead to subsequent legal proceedings. I am aware of examples of ongoing investigations which have taken several years where the standard reply from the local authority is that the matter is being looked into, that the matter is being investigated or that the matter is under review. Surely if one of these authorities is statutorily obliged to institute proceedings where there is clear evidence of damage to the environment, it is similarly obliged to quickly and speedily use the resources available to them to conclude their investigations with a view to instituting the proceedings and abate the nuisance or pollution as the case may be. In the past individuals and groups were compelled to go to court because of the tardiness of regulatory authorities in discharging their statutory responsibilities.

The Minister should have some mechanism available to him to independently review the activities of authorities whose preliminary investigations exceed, for example, a period of six months. I understand that under the regulations the Minister must prepare a report within a period of two to three years on how these regulations are being implemented. He should monitor the activities of authorities that constantly use the excuse that a matter is being investigated. There should be a cut off point after which they cannot offer that excuse. I know of a case in my constituency — I cannot mention it — where this has been going on for at least three years and is of great concern to a large number of people because of the serious environmental consequences. The local authorities constantly send out letters to the effect that the matter is under review and is being investigated. That has been going on for three years and it is not good enough.

Of concern to me also is the interpretation put on the confidentiality of the deliberations or proceedings of public authorities and, particularly, reports or analyses produced to assist internal consideration of issues by a public authority. Reports and analyses are produced on an ongoing basis. Where there is a pollution incident or such like subsequent to the preparation of a report or analysis or prior to the report or analyses, would this prevent all such reports or analyses being refused a public airing on the basis that they were produced to assist internal consideration? Blanket delineation of such reports and analyses would patently be unfair and undermine public confidence in the right to gain such information.

Similarly, a public authority might circumvent the regulation by basing a refusal on the grounds of commercial or industrial interests which would be threatened. In times of increasing environmental awareness, particularly in regard to such industries as pharmaceuticals who depend on a reputation for not damaging the environment in their efforts to penetrate world health markets, any release of information of a pollution incident is going to cause commercial damage to that industry. Furthermore, public authorities should not have to state that they do not have the resources available to them to comply with the request to provide the information requested. Our local authorities at present are stretched to the limit and any request for information puts additional demands on staff, as all such information has to be prepared to the highest standard because, very likely, it could be the subject of further scrutiny in court. These regulations are new and their effectiveness will only be determined with the passing of time.

Our public authorities have great latitude and flexibility, subject to the right of an individual to have any decision reviewed in court. If public confidence is to be maintained these regulations must be interpreted reasonably, fairly and without fear of retribution. The flexibility built into the regulations relating to the charge to be made by the public authorities is reasonable and again the Minister must keep this and all other issues under close scrutiny to ensure that no abuses creep into the system.

I am pleased to note that the Ombudsman will have jurisdiction to review any refusal. I am pleased also to note that the regulations provide that the public authorities are to provide an information policy statement indicating in a brief and user-friendly way the type of environmental information presently held by them and the arrangements for dealing with requests for this information.

I welcome these regulations. However, the information that is gathered by the public authorities is only as good as the resources, equipment and trained staff available. We have come a long way in Ireland in the past few decades towards ensuring that the environment is protected for future generations. As industrial processes become more sophisticated and complex, it is only right and proper that the authorities who are obliged to control and monitor them have the necessary resources, that the accuracy of the information obtained is beyond reproach and that it is not suspect or deficient. The personnel operating within our public authorities are highly motivated, well intentioned and have a desire to discharge their public duty to the highest possible standard.

Mr. Nolan

I welcome the decision to implement the EC Directive on access to information on the environment regulations. Although this may not be what all Members want, it is a start and the Minister of State is to be complimented on implementing it.

Local authorities have now become a major player in environmental protection and policing. It is becoming far more costly for local authorities to implement the various regulations being introduced by the Department of the Environment. The Minister might look favourably at the possibility of increasing funding to local authorities which are stretched to the limit in carrying out their normal functions. Any new functions imposed on them will, obviously, cause more strain.

Pollution regulation and control, refuse collection and disposal and the physical planning and environmental control are all areas where local authorities have a major input. It is only right that the public should have the fullest access to information as a right. Of the many advances that have been made in the past few years in environmental protection, the one that immediately springs to my mind is in regard to planning. In the past five or six years, in particular, the public have become more aware of their rights. The implementation of this Directive will increase the amount of information available.

Planning is a very sensitive issue and improved standards of planning throughout the country are very welcome. Some might say that some of the conditions being insisted upon by planning authorities are too severe. Of concern to planning applicants is the stipulation that an environmental impact study must be carried out in respect of planning applications. It is correct this should be the case. Our countryside is littered with evidence of planning which has left it scarred. Perhaps the planning Acts were not in place at the time such developments took place. I hope that is a thing of the past.

The regulations are introduced against a backdrop of changing attitudes to the provision of information on environmental protection. The increased effort in recent years by public authorities to make more information freely available is welcome. I welcome the Minister's call on public authorities to respond positively and promptly and to provide information that is clear and specific. This is very important. A suggestion was made that some Government Departments and local authorities surround themselves in a veil of secrecy.

I also welcome the new development at EC level which will increase awareness and promote better quality information, including ECO labelling for some produce. This will make the public more aware of environmentally friendly products. It is a move in the right direction.

The Minister stated he would like to see public libraries used by local authorities and Government Departments as information centres. Local county libraries already provide information and this would be a logical extension of their role. The provision of information by the Department of the Environment is improving annually. Deputies will be aware that information is issued on an ongoing basis in the form of a bulletin. The information contained in the bulletin is precise and detailed on all aspects of environmental protection. Local authorities and county councils are to be commended in that they are issuing environmental information. Information is provided in regard to river water quality in our county on a monthly basis. The Department of the Environment issues information and reports on the quality of drinking water. The importance of transparency in all aspects of Government business has been emphasised and this is a move in that direction. I would like the county libraries to be used more fully in this regard.

I commend the Minister on the implementation of this Directive. There are weaknesses in it but it is a start. We should move on from here and make positive suggestions as to where it may be improved.

Mr. Briscoe

I welcome the Minister's statement. It is pleasing that at least our society is becoming more open in relation to people's need to obtain information regarding environmental protection. I do not wish to go over matters covered by other speakers ad nauseam. As we become more conscious of people's rights to gain access to information we should make people more aware of how they may obtain information.

I wish to refer to a planning matter which came to my attention yesterday and to which the Minister might be able to respond when replying. When someone appeals to the planning board against planning approval granted by a local authority they must submit £100. If the appeal is upheld the £100 is not returned. Subsequently if the local authority issues an approval on a slightly altered application and the same person appeals to An Bord Pleanála they must submit another £100. I would be pleased if the Minister would clarify this matter as it would save me telephoning his Department.

I also welcome the use of libraries. Members of Dublin Corporation have been using the libraries for a long time for the purposes of providing information. When I became a member of the corporation in 1967 I successfully tabled a motion to provide information centres where people could gain access to information on services. Libraries have been used in that regard since that time. Local authorities should be encouraged to use the libraries to disseminate information. Many public representatives hold their clinics in local libraries.

I am pleased with the publication of an increasing number of reports by the Minister's Department. This is welcome. Reference has been made to the environmental bulletin detailing developments in environmental protection at local, national and international level. This is welcome. I am not sure if Deputies receive copies of the environmental bulletin.

Mrs. Doyle

The Deputy does, he obviously does not read them.

Mr. Briscoe

My wife obviously keeps them and studies them carefully.

Mrs. Doyle

I can tell from the content of his deliberations that the Deputy reads them avidly.

Mr. Briscoe

That is true.

Mrs. Doyle

The Deputy does not have to fill the time. He should not be bullied. He is far too nice to be subject to such pressure from his Whip's office.

Mr. Briscoe

The Deputy admits to being a bully. She is on the record as having said that. I do not require to be bullied by the Deputy but it reminds me of that famous——

An Ceann Comhairle

The reference was made in the nicest fashion on a complimentary basis.

Mr. Briscoe

——exchange in the House of Commons some years ago where the lady might have put poison in the gentleman's coffee to which he replied that if he was married to the lady he might take it.

Mrs. Doyle

I was merely trying to be kind.

Mr. Briscoe

Irish companies are taking more initiatives on green policies. Even the paper on which these regulations are printed is recyclable. Again, it underlines the consciousness at Government level of the need for conservation.

Mr. Sargent

Unfortunately, it is bleached, Deputy.

Mr. Briscoe

Is it bleached? I hope it is edible bleach.

Mr. Sargent

I have not tried it.

Mr. Briscoe

I welcome the Minister's statement and the progress which his Department is making in this regard. In relation to drinking water and the water quality here, this is one of our major assets. We tend to play down the quality of our drinking water but it is far better than some of the bottled water available.

Mrs. Doyle

We have plenty of that at present.

Mr. Briscoe

After the latest rainfall we will not be complaining of a drought this year. I hope that the strawberries in the Deputy's county will not be destroyed entirely by all the rainfall.

Mrs. Doyle

I thank the Deputy for his concern and I will pass it on to my colleagues in Wexford.

Mr. Briscoe

Please do and I hope the Deputy will bring some samples of the produce to show they are still up to standard.

I welcome the introduction of this Bill.

Mr. Sargent

I wish it was a Bill.

Mr. Briscoe

I welcome the Access to Information Regulations and the fact that we are now conforming fully with the EC Directive on the Freedom of Access to Information on the Environment. I wish the Minister well in his continuing progress, in this area.

Minister of State at the Department of the Environment (Mr. Browne,

Wexford): I wish to thank Deputies from all sides of the House who have made contributions here today. Some of the Deputies are unhappy and most of them expressed reservations. I hope these regulations are only the beginning of a process; they must not be taken in isolation. They are an honest, open attempt to reflect the provisions of the Directive in our public systems. These should be examined, not in isolation but in the context of all the activities and publications to which I referred earlier, particularly the significant information role which has been given to the Environmental Protection Agency, which will be up and running shortly.

A number of issues were raised by Deputies Costello, Keogh and Sargent in relation to An Bord Pleanála concerning the lack of transparency. I wish to place on the record the position in relation to An Bord Pleanála. Deputies have expressed concern about the definition of "public authorities" for the purposes of the Directive and regulations. Particular concern has been expressed in relation to An Bord Pleanála. Article 2 (b) of the Directive defines "public authorities" as any administration at national, regional or local level with responsibilities for possessing information relating to the environment with the exception of bodies acting in a judicial or legislative capacity.

The regulations follow closely the provisions of the Directive in this regard. Article 3.3 (a) provides that they will not apply to information held in connection with or for the purposes of any judicial or legislative function. "Judicial function" is likely to be construed as including processes of determination by Ministers and other public authorities, including An Bord Pleanála, which are open to the hearing of submissions from different parties and in relation to which the Irish courts have already declared that the authority concerned is required to act in a judicial manner.

Reference has been made to the inspectors' reports in relation to An Bord Pleanála, particularly under the other systems that are freely available in the UK. However, there is a fundamental difference between our system and that in the UK. In the UK it is the inspector who makes the decision on an appeal and the inspector's report is the decision. The board of An Bord Pleanála, however, act as a quorum of at least three, and usually as the full board of six, in complex and difficult cases. In arriving at a decision the board must have regard to all matters before it and the inspector's report is therefore only one component of the decision making process of An Bord Pleanála. The board's decision is contained in its order which sets out in full the reasons for the decision and, where conditions are attached, the reasons for each condition.

There is a fundamental misconception about the role of inspector's report in decisions made by An Bord Pleanála. There is open access to all environmental information at all stages of the planning process. The local authority file is an open book with the application, further information submitted by the applicant, the EIS and associated documents, reports prepared for the planning authority and the planning authority's internal documents, as appropriate, open to the public during the application period and immediately the planning authority decision is made. At the appeal stage the full grounds of appeal, with whatever information on the environment they contain, are circulated to all parties to the appeal. The inspector's role is to pull all this material together, make an assessment and a recommendation to the board to assist the board in reaching its decision. It is not the inspector's role to be a source of additional and new information on the environment. However, if it transpires that new issues of significance in the appeal are highlighted by the inspector, the board, in the exercise of its functions in a judicial manner, must bring these to the attention of the relevant parties that have participated in the appeal. They have adequate powers to do this in section 13 of the Local Government (Planning and Development) Act, 1992. In this way any additional environmental information would come into the public domain.

I cannot accept that the publication of the inspector's report would add to the already free access to all forms of information, environmental and planning, inherent in our present open and transparent planning system. Indeed, there are already well established procedures for the circulation of relevant documentation to parties involved in planning applications and appeals. It would confuse those procedures and make the planning process unmanageable if we were to add another layer——

Mrs. Doyle

Who would it confuse?

Mr. Browne

(Wexford):——of overlapping legislative procedures to it.

Mr. Sargent

The courts may take a different view.

Mr. Browne

(Wexford): As I have outlined, there is complete transparency in An Bord Pleanála from the beginning of the planning process to its conclusion.

Mrs. Doyle

That is not true. What is the Minister afraid of? Let the reports become public. Make the judgments available to the public.

An Ceann Comhairle

The Minister of State has only five minutes to reply.

Mrs. Doyle

It is not transparency. It is misleading the public.

Mr. Browne

(Wexford): The timeframe for responding was mentioned by a number of Deputies also. The emphasis in the regulations is on early response and in most cases I expect that the public authorities will respond within relatively short periods of, say, one to two weeks. Where the information requires searches, compilation or copying, longer response periods will be required. Some Deputies mentioned a ten day period. That could result in more refusals being given, particularly where the public authority is unable to provide information within the time limit.

Mr. Sargent

It works in Denmark.

Mr. Browne

(Wexford): This would result in the applicant having to resort to the review procedures thereby involving everyone concerned in unnecessary bureaucracy. The formula used in the regulations, which is based on that contained in the Directive, is a reasonable compromise between the interests of the applicant and the practicalities of supplying the information sought.

Mrs. Doyle

Not so.

Mr. Browne

(Wexford): The other question raised was in relation to charges. I hope we do not introduce prohibitive charges in this area. Deputy Sargent highlighted the case of a student being charged £25 for old files. That should not have happened and perhaps we may be able to assist that student by taking up the matter with the relevant authority. I would not wish to see students, or indeed anyone else, being charged £25 for these files. In my local authority area they do charge for the issuing of some documents, but this would be a minor charge.

I wish to emphasise a number of aspects in relation to the charges. As the regulations do not apply to information already available to the public, it will not be possible to introduce any additional charges for such information under these regulations. Public authorities have been urged to continue to supply information freely as long as costs are not significant. Article 9 of the regulations requires that charges shall not exceed an amount which is reasonable, having regard to the cost of making available the information. Charges for the initial gathering or processing of information would therefore be excluded, as would charges for staff time in giving advice on information that is available. The imposition of a charge which is so prohibitive as to be tantamount to refusal could of course be appealed by the applicant either to the public authority in the first instance or to the Ombudsman if the authority came under the jurisdiction of the office of the Court for Judicial Review. I hope the local authorities and the people involved in giving out information will not overcharge and that the information will be made available as freely as possible.

One matter that was raised on a number of occasions relates to the eight week period during which a local authority may reply on planning matters. That period of time is much too long and is causing concern throughout the country.

Mrs. Doyle

What about international relations being a discretionary ground for the refusal of information, such as the case of Sellafield where there is a huge problem?

An Ceann Comhairle

Time does not permit a discussion on this matter now.

Mr. Browne

(Wexford): These regulations will not interfere in any way with the seeking of information on Sellafield. That is a different department.

Mrs. Doyle

They could interfere with it. It is a discretionary ground for refusal.

Mr. Sargent

There has not been a court case on that matter yet.

Mr. Browne

(Wexford): This is a new directive. The Minister has given a commitment to reconsider it as it progresses and that commitment will be strictly adhered to. Obviously there will be teething problems with implementation. This is a first step and I hope the regulations will be improved as the months and years go by.

Mr. Sargent

Will a Bill be published on this matter?

An Ceann Comhairle

That concludes statements. We will now proceed to deal with other business.