COMMENT & ANALYSIS: Minister Shane Ross seems to be a transparency advocate in relation to the appointment of judges, but his own department is going to great lengths to avoid releasing records which they have said supports their position that the use of cycle tracks is still mandatory even after a 2012 law change.
The 2012 law change was designed to make cycle lanes and cycle paths — which combined are legally called cycle tracks — optional for cyclists to use, except contra-flow tracks and those in pedestrian areas or streets.
Under both Freedom of Information (FOI) and Access to Information on the Environment (AIE), we requested the “The release of any and all records which support the Department of Transport claim that the explanatory note of SI 332 of 2012 incorrect, as stated by the Department’s press office: ‘The explanatory note attached to the 2012 Regulation is incorrect in stating that only use of contraflow cycle track and of any cycle track in pedestrianised area is mandatory’”.
The records that the Department of Transport refuses to release under a Freedom of Information request were an “Email from Garda National Roads Policing Bureau – 13 May 2015” and “Director of Public Prosecutions response to queries – May 2015.” A third document was released but it contains no detailed information which backs the Department’s claim.
The department claimed that the Gardai and DPP are not covered under FOI in relating to what was requested, but the same cannot be said about the request under AIE, or what this website sometimes refers to as environmental FOI.
The Department of Transport just simply tried to claim that what was requested is not environmental information and thus not covered because the “request relates to legislative matters and not environment information.”
We then put it to the department that cycle tracks are environmental policy and that cycle tracks have potential to effect elements of the environment and asked were they saying otherwise. They confirmed they were not, saying: “This Department has never claimed that cycle tracks are not part of environmental policy and that cycle tracks have no potential to effect elements of the environment…”.
The AIE rules state that legislation issues are covered as much as they affect or likely to affect the elements of the environment and measures or activities designed to protect those elements. The AIE process is designed to be very broad in scope, it was designed at EU level to be so.
But then, while looking for reasoning of the rejection, the Department of Transport’s decision maker said something which stunned us.
The decision maker said: “I have decided that your request for documents to ‘all records which support the Department of Transport claim that the explanatory note of SI 332 of 2012 is incorrect’ is not relevant to AIE regulations. You did not request records on legislative issues relating to cycling and cycle tracks…”.
Documents which the Department of Transport named (but will not release) as backing their claims on cycle tracks are, according to the same department, not records on legislative issues relating to cycling and cycle tracks.
This is a quite stunning claim to try to avoid releasing documents to back up their own claim.
We asked the decision maker directly how they could make such a claim, but they have not responded since. Then we asked for comment from the Department of Transport press office and from the Minister of Transport directly, but we have also received no response.
I was also told: “You requested records that support the Department’s claim that the explanatory note of SI 332 of 2012 is incorrect. These records have been provided to you, such as they can be under the FOI Act. The Department’s claim is based on the legal wording.”
It is worrying if the Department of Transport thinks what little I received under FOI amounts to support of a claim which contradicts the combination of a previous Minister’s Dail speech, an explanatory note, a press office statement and the previous minister accepting thanks from members of the public for changing the law.
This is in the realms of claiming war is peace, and that black is while. But just in case I was getting all of this horribly wrong I asked for an independent source for a second opinion before I appeal the refusal under AIE.
Fred Logue, at FP Logue Solicitors, said there seems to be a coordinated policy among certain public authorities to refuse AIE requests on the basis of very narrow and logically flawed interpretation of the definition of environmental information.
He says the public authorities then advise applicants to file an FOI request, which have more grounds for refusal and, under FOI, it’s harder to appeal such refusals.
Logue’s law firm focuses on technology, media and brand-focused sectors. His clients include Right to Know, which is interested in taking complaints and litigating strategic access to information issues. He says the definition of environmental information is in their sights as this seems to be where the battle to undermine AIE is currently being fought.
Shane Ross can’t be looking for transparency on issues relating to other departments when his department is acting like this and he’s doing nothing about it.
IrishCycle.com will be appealing the AIE refusal, but Ross has questions to answer regardless.