Commissioner accepts appeal case against Irish Rail

My appeal case against Irish Rail rejecting my Access to Info on the Environment  (AIE) request on railway speeds has been accepted by the Office of the Commissioner for Environmental Information (part of the Information Commissioner’s office).

Irish Rail rejected my request claiming rail speeds is not environmental information, I in turn rejected this, requested an internal review which said the same as the first denial and then I appealed to the Commissioner.

Unlike FOI, Irish Rail and others are covered by AIE. It’s also free to start with, although the appeal is €150.

There’s a bit of a wait now for Irish Rail to say their part and for myself to give further input if needed.

Here’s my appeal:

23 September, 2010

Dear Sir / Madam:

Under the European Communities (Access to Information on the Environment) Regulations 2007, S.I. No. 133 of 2007, and Directive 2003/4/EC on access to environmental information, I wish to appeal an Internal Review decision by Iarnrod Eireann – Irish Rail (which I will refer to here as ‘Irish Rail’).

Irish Rail has decided that the information I seek is not as far as the regulations are concerned environmental information. I reject this.

My original request was sent on June 11. It asked for “Under the Access to Information on the Environment (AIE) regulations, S.I. No. 133 of 2007, I am seeking a list of all current speed restrictions on the Irish Rail network, and any reports directly related to these speed restrictions.”

On June 23, Irish Rail told me: “The information you request is not an environmental issue, and is not subject to the AIE regulations.”

I rejected this and on July 13 I sent an email outlining why and seeking an internal review.

On August 20, still without a reply, I asked Irish Rail again when I should expect a reply. On the same day Irish Rail said this that they expect a response to the internal review next week, and they apologised for the delay.

It was only today, September 2, when I received that reply. The reply to my request for an Internal Review from Irish Rail quoted the regulations and said:

“The definition of “Environmental Information” clearly relates to emissions to the environment, and administrative decisions “likely to affect” the elements and factors referred to.”

“I fail to see how the use of Temporary Speed Restrictions could fall into any of these categories; this information is purely of an operational nature, and by definition, are of a transient nature.”

“Therefore, I concur that the release of such information is not warranted under the Access to Information on the Environment legislation.”

It is my view that:

1. the Internal Review and the original decision are incorrect and misunderstand the scope and meaning of ‘environmental information’ as defined by the regulations;

2. the Internal Review does not in any way engage with my reasoning or any of the detail within my request for an Internal Review, and that;

3. the Internal Review is flawed as it deals with “Temporary Speed Restrictions” where the request was for “all current speed restrictions”.

As per my request for internal review, it is for the following reasons that the request is covered under the regulations as ‘environmental information’:

It should be noted in the AIE regulations “environmental information” is a very broad term. As the guide to AIE by the Department of the Environment notes: “The definition is deliberately wide in scope and comprehends an extensive range of information.” As the European Commission says, the directive and regulations in all countries cover a wide range “activities or measures adversely affecting or likely so to affect these, and on activities or measures designed to protect these.” What affects or even effects the built and natural environmental is included.
The requested information is covered under the regulation as ‘environmental information’ for a number of reasons.

Railway lines, the maintenance, repair, and construction of these, as well as the running of trains on these all have environmental effects and affects.
Speed restrictions are in place for environmental reasons, including the likelihood of embankment collapse, flooding, landslides etc. This is directly linked to section 4 (a) [ie “the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components”]. This seem to be supported by the views of the (former) engineer and chief civil engineer of Iarnrod Eireann / Irish Rail — SEE: ‘Chief engineer takes Iarnród Eireann to High Court’ in the Sunday Business Post, April 4, 2010, available at: http://thepost.ie/news/ireland/chief-engineer-takes-iarnrod-eireann-to-high-court-48414.html
Any remedies (ie maintenance, repair, and construction) on sections of the network with restrictions in place because of the likelihood of embankment collapse, flooding, landslides etc are likely to affect
“the state of the elements of the environment” mentioned in 4 a of the regulations.

Speed restrictions relating to the state of track, track bed, bridges or foundations are all “built structures.” These can be seen as covered under “built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to  in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c)”;

Given that the main reason for speed restriction is safety, all speed restrictions can without question be linked to the “state of human health and safety” as mentioned in section 4 (f) of the regulations. Issues of human health and safety and the state of the environment around the railway network are of the utmost importance given affect environment impacts can have on state of human health and safety of railway passengers and staff.

Speed restrictions can affect or are likely to affect the energy use, noise, and emissions of trains — all of which elements are covered under section 4 (b).

Given the growth of the motorway network, the speed of rail transport – mostly passenger transport but also freight transport — can be a key decider on what transport mode a person or company uses, speed restrictions can have an affect on user choice and increase the possibility that potential passengers or freight will be transported using forms of transport which have greater affects on the environment – this affects state of the elements mentioned in sections 4 (a) and the factors mentioned in 4 (d) of the regulations. It also is under 4 (c): “measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,”
The possible use of express intercity buses instead of trains now for passenger use is also covered 4 (c) as a measures and policy, and under 4 (e) [ie to allow for cost-benefit and other economic
analyses].

Further to this, Irish Rail’s reply from the requested Internal Review stated that “I fail to see how the use of Temporary Speed Restrictions could fall into any of these categories; this information is purely of an operational nature, and by definition, are of a transient nature.” I have outlined above how any rail speed restrictions could fall into the definition of environmental information, but in reply to the comments of the temporary speed restrictions being “operational” and “transient” in nature, being so does not exclude it from also being environmental information.

Finally, speed restrictions of all sorts and the reports on such have a major impact on the railway network and are heavily related to environment, the safety of the railways, as well as the viability of the network and have major consequences for State environmental policy and how State money is spent on the environment and environmental measures and manures which affect the environment.

Regards,

Cian Ginty

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