Investigative journalism – following the paper trail

This article  by Gavin Sheridan first appeared on on 4 May, 2010. Reproduced with the author’s permission.

A powerful new weapon in the journalist’s armoury, the AIE, is similar to the Freedom of Information act but is largely unknown to Irish journalists. Gavin Sheridan examines this cost-effective way to get at the truth.

Seek and ye shall find

There are two main methods of getting information from public authorities in Ireland. The first is the Freedom of Information Act, as amended in 2003. This is the best known and most utilised by journalists. The second is less known – the Access to Information on the Environment (AIE) Regulations.

There are likely a few reasons as to why the AIE has been ignored, the main one perhaps being that the word ‘environment’ may put off many. Unfortunately this has led to a serious under-utilisiation of what is is a powerful weapon in the armoury of any journalist.

AIE was transposed into Irish law using a Statutory Instrument in 2007. It brought into force the 2003 European Directive. There are a number of very positive aspects to the legislation, and there is a reasonable overview on the Department of the Environment’s website.
Requests are free

The first it that AIE requests are free. This means requests can be emailed. The second is that internal reviews are also free. They can also be emailed. Appeals to the Office of the Commissioner for Environmental Information (OCEI), which is essentially the same office as the Information Commissioner, cost the same as under FOI, €150.

The public interest test under AIE is also superior to that under FOI. This means that your appeals will be stronger by virtue of this test.

But here is where it starts to get really interesting. Under FOI, only certain bodies are prescribed – the Minister for Finance decides what bodies fall under the Act, and what ones don’t. Most notably bodies such as the Financial Regulator, the Central Bank, the NTMA, and An Garda Siochana, are not under FOI.

All public authorities are eligible

But under AIE, all “public authorities” are prescribed by default. This would include bodies that have never been under FOI, including all the VECs, Harbour Commissioners, Port Companies, CIE, ESB, Bord Gais, An Garda Siochana and Coillte, among others. Indeed the test for what comprises a public authority is itself quite wide. It is useful to examine the decisions of the UK Information Commissioner to see just just how widely this is being applied – as the legislation here is so underused, there are very few decisions on which to rely.

Wide definition of environmental information

Of course the critical question is what you go asking for and so what constitutes “environmental information”. Again it is worth seeing just how wide this definition is being applied in Britain. While the first thing you might think of is information related to waste, fuel or recycling, the further you explore the regulations, the more you realise that the definition of environmental information is extremely wide in scope.

Many bodies are completely unaware that they fall under the regulations and so would not have a dedicated officer, as in the case of FOI, who handles requests. In this case it is best practice to prepare your request, find a person to address it to (senior perhaps), and then call to confirm receipt of the request. Like under FOI, the body has 20 working days in which to reply. If they fail to reply, it is a deemed refusal, and goes to internal review, and on to appeal to the commissioner. There are no set search and retrieval fees (bodies set their own), but you are free to appeal if you feel the fee is too high, and generally the legislation errs on the side of lower fees.

Britain has a far more progressive regime: their Information Commissioner’s Office (ICO) handles Data Protection, FOI and AIE all under the one roof, and decides whether a request would be better handled under AIE than under FOI. Our system is far more fragmented.

But in future, if any request for information relates in any way to something vaguely environmental in nature, write simultaneous requests under both AIE and FOI.