IrishCycle wins appeal for release of detailed BusConnects drawings

IrishCycle.com has won its environmental freedom of information appeal for the release of BusConnects CAD files, which are a more detailed version of the project drawings than released previously.

Ger Deering, the Commissioner for Environmental Information, has ruled that the National Transport Authority must release the file for the Core Bus Corridor 12 covering Rathfarnham to the city centre.

The issue at stake was the release of AutoCAD drawings for the project. IrishCycle.com seeker the drawings in this format as the PDFs provided as part of the public consultation were insufficient to accurately determine details such as the widths of cycle paths at different points along the route.

The Commissioner said it was clear that there is a presumption in favour of release of environmental information, that the drawings in PDFs already made public do not include the requested detail, that the drawings in the format requested are environmental information, and “There is undoubtedly a strong public interest in transparency as to how public authorities, such as the NTA, carry out their functions with regard to environmental factors and I consider that public interest to be the outweighing factor in this case.”

In his rulling, Deering said: “Having carried out a review under article 12(5) of the AIE Regulations, I annul the NTA’s decision and direct release of the information requested. I also direct the NTA to ensure that release of the information is accompanied by a clear statement that such release is without prejudice to the OSI’s copyright.”

He said that a party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. He said this should happen later than two months after notice of the decision was given to the person bringing the appeal.

Deering said: “NTA has not only attempted to make my Office the communicator of a decision which should have been communicated by it in the first instance, it has failed to even invoke the statutory basis for refusal. It has also failed to set out the adverse impact it considers might arise from disclosure and the basis on which such impact would outweigh the public interest in disclosure in this case.”

He also said: “I must also express my disappointment at the manner in which the NTA engaged with my Office… Not only did the NTA provide submissions beyond the deadline provided without requesting or being granted an extension of time, the submissions provided also introduced a new material issue. The NTA submitted that it could not release the information requested by the appellant, not only for the reasons referred to in above, but also because copyright in the maps on which the AutoCAD drawings were based vested in Ordnance Survey Ireland (OSI) and release would breach the terms of the licensing agreement between OSI and the NTA.”

Deering continued: “The additional submissions made no reference to any article of the Regulations on which refusal might be based nor did it contain any indication that the NTA had carried out a public interest test as required by article 10 or indeed, had contacted OSI to ascertain its position. It is unacceptable that such an argument would be raised by the NTA at this point.”

He said: “By invoking the copyright of a third party without making any attempt to contact that third party, the NTA has also acted in a manner which is contrary to the spirit of the AIE Regulations and Directive, which make it clear there is a presumption in favour of disclosure and grounds for refusal are to be interpreted strictly. This is not acceptable and the NTA should take steps to ensure such conduct is not repeated.”

He also said the NTA said that the NTA said that the fee to appeal is €150 or €50 applicable in certain instances, when the fee is actually €50 or a reduced fee of €15, and it is open to his Office to waive the applicable fee where the decision of the public authority has not been issued in a timely manner. He said the NTA should ensure this error is not repeated lest the incorrect information dissuade any potential appellants from making an appeal.

The Commissioner used NTA and Government policy to point out that information relating to cycling infrastructure is environmental information, and said the data contained in the different formats are environmental information.

Deering said: “The NTA has sought to argue that while the CAD files may contain environmental information, they represent a format of the information and the files themselves are not environmental information. It argues that the road layouts on the AutoCAD drawing are identical to the published pdf information brochure drawings and it is simply the format of the presentation that differs. It therefore submits that while the drawings contain, or relate to, environmental information, the format of the drawings should not be categorised as environmental information. The point being made by the NTA is not clear.”

He continued: “In any event, the definition contained at article 2 of the Directive and article 3(1) of the Regulations provides that environmental information is ‘any information is written, visual, electronic or any other material form’. The existence of information in one format does not therefore preclude another format of that information from coming within the definition of “environmental information” contained in the Directive and the Regulations. I am satisfied therefore that both the pdf files and the CAD files are “environmental information” within the meaning of article 3(1) of the Regulations.”

The full decision by the Commissioner can be found at ocei.ie.