Cinneadh
Ms A and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139193-Z4J9X2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139193-Z4J9X2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether information requested by the appellant is “environmental information” within the meaning of article 3(1) of the AIE Regulations
26 March 2024
1. On 6 March 2023, the appellant made the following request to Coillte:
“I refer to the Coillte Annual Report 2021, and in particular, page 142. It is reported on page 142 that 'The key management compensation amounts disclosed above represent compensation to those people having the authority and responsibility for planning, directing and controlling the activities of the group and Company. These include the Board members and senior executives. Senior executives comprised the CEO plus six others during 2021.'
‘For 2021 and in relation to all individuals included within the 'Key management compensation' (Note 8 to the Financial Statements) for 2021, I request, by email:
1. Information on the number of individuals where the individual's remuneration package included (potentially or in actual practice) a bonus scheme based on that individual's performance.
2. Information on the number of individuals where the individual's remuneration package included (potentially or in actual practice) a bonus scheme based on the performance of a Department/team or similar and/or the performance of the Company and/or Group
3. Information on all targets that formed part of any bonus scheme that applied (potentially or in actual practice) in 2021 (irrespective of whether the performance was linked to that of an individual or groups e.g. Department / team, the Company etc.).
4. Information on how all targets were measured for purposes of any bonus scheme that applied (potentially or in actual practice) in 2021.’
2. On 5 April 2023, Coillte issued its original decision to the appellant. It said:
“I have decided to refuse the Request on the basis that it requests information that is not “environmental information” as defined in Article 3 of the AIE Regulations.
I do not agree with your portrayal of this information as environmental information in the Request.
In my view the information the subject of the Request does not satisfy the definition of “environmental information” in article 3(1) of the AIE Regulations. In considering this question I have had regard to the definition of “environmental information” set out in Article 3(1) of the Regulations, the Guidelines document provided by the Minister of the Environment, Community and Local Government on the implementation of the Regulations (the “AIE Guidelines”); Directive 2003/4/EC, upon which the Regulations are based, the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (the Aarhus Convention), the Aarhus Convention: An Implementation Guide (Second edition, June 2014), and to decisions of the Commissioner for Environmental Information.
In that regard, the information sought by the Request does not include or comprise information on any of sub-paragraphs (a) to (f) of the definition of environmental information. In particular, the information sought is not information on measures or activities affecting or likely to affect or measures or activities designed to protect: “(a) 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, including genetically modified organisms and the interaction among these elements, (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment”
In my view the information sought is not a measure or activity affecting or likely to affect the environment. The Request seeks information on the number of key management personnel who benefit from bonus schemes and information on how any such bonus schemes are structured and this is information on how Coillte manages itself internally. The Request does not seek information on any of Coillte’s activities. The manner in which key management personnel in Coillte are compensated does not and could not impact on the environment. While it is accepted that decisions taken by key management personnel may, in certain circumstances, be measures affecting or likely to affect the environment, the decision by Coillte to structure the compensation of key management personnel in a certain way does not and could not constitute such a measure. Something more than a remote or theoretical possibility of an effect on the environment is required to fall within the definition in the AIE Regulations.
It follows that the AIE Regulations do not apply to your Request. On this basis, your Request is refused.”
3. On 7 April 2023, the appellant requested an internal review decision from Coillte.
4. On 10 May 2023 Coillte issued its internal review. It said:
“Having re-examined your Request, I made a final decision on this Review on 10/05/2023. I have decided that the decision made by the initial decision-maker should be affirmed, and I set out hereunder the basis of this conclusion.
Reasons for Decision
Article 3(1)
The Request, as currently worded, does not satisfy the definition of “environmental information” in article 3(1) of the AIE Regulations. In considering this question I have had regard to the following sources: 1. The definition of “environmental information” under Article 3(1) of the Regulations, in part requires that a request concerns information on: a) 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, including genetically modified organisms and the interaction among these elements; or b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment”; or 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
It is objectively clear that information on the remuneration of Coillte staff does not of itself concern the state of the elements, nor any release into the environment with a likely effect thereupon. In that regard, at most the information requested falls to be considered under part c of this definition.
In Redmond v Commissioner for Environmental Information, in considering the above definition in the Regulations, the Court of Appeal confirmed that information requested need not to be of itself intrinsically environmental. The relevant aspect is whether the information is on a measure or activity that affects or is likely to affect the environment. The Court confirmed that measure or activity is “likely to affect” the environment if there is a real and substantial possibility that it will affect the environment. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required. Applying same, Coillte is not of the view that the remuneration of its staff members is a measure with a real and substantial possibility or capability of impacting the environment. In this instance, Coillte considers any link between the payment of its staff, and environmental impacts arising therefrom as overly remote to qualify as Environmental Information for the sake of the AIE Regulations. In the first instance therefore, Coillte considers that the information requested falls outside the scope of the definition for Environmental Information, and refuses your request on this basis.”
5. The appellant appealed to this Office on 5 June 2023.
6. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the submissions made by Roscommon County Council. appeal. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
7. I have taken account of the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know CLG v. Commissioner for Environmental Information and Raidio Teilifís Éireann [2021] IEHC 353 (RTÉ) and the decisions of the European Court of Justice in case C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen (Glawischnig) and case C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg). I have also had regard to the judgment of the Court of Appeal of England and Wales that is referred to in the latter three Irish judgments, Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney).
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, my role, on behalf of the Commissioner, is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
10. The Commissioner for Environmental Information’s powers apply only in respect of environmental information held by or for a public authority. It is clear from Coillte’s original and internal review decisions, along with its correspondence with the appellant and this Office, that it is Coillte’s position that the information sought by the appellant is not “environmental information” such that it falls within the remit of the AIE Regulations.
11. In accordance with this Office’s Procedures Manual, available at www.ocei.ie my general practice in cases such as this, concerning a threshold jurisdictional issue, is to limit my review to the preliminary matter of whether the information sought is “environmental information” such that it falls within the remit of the AIE Regulations.
12. Accordingly, I am satisfied that the scope of this review concerns whether Coillte was justified in refusing access to the requested information on the basis that such records do not contain “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations.
13. It is clear from the comments of the Court of Appeal in Redmond, at paragraph 51, that the nature of a review by this Office is inquisitorial rather than adversarial in nature. The extent of the inquiry is determined by me and not the parties to the appeal.
14. In light of the guidance of the High Court in RTÉ, it is my view that I should decide on a case by case basis whether it is essential for me to review the entire content of the requested information before determining whether it is environmental information. In many cases, the content of the requested information will be highly relevant to the determination. This is one of the reasons why, in most cases, I require the public authority to make the requested information available to this Office for the purposes of my review. In other cases, the information requested will not itself be intrinsically environmental and the question will be whether the information requested is information ‘on’ a different measure or activity which is likely to affect the environment. In such cases, examination of the entire content of the requested information may be unnecessary.
Submissions of the parties
15. The appellant made the following points in submission to this Office on 14 June 2023.
“The Coillte Annual Report 2021 states that ‘key management’ have ‘the authority and responsibility for planning, directing and controlling the activities of the Group and Company.’
Given that Coillte manage 440,000 hectares (7% of the land mass of Ireland) how key management plan, direct and control the activities of the Group and Company is vitally important for the environment.
I attach a document headed ‘Coillte Group Strategy 2020-2024’ obtained from DAFM under AIE/22/579.
Page 12, under the heading ‘Recap on Key Assumptions underpinning Strategy Refresh’ is the following statement from Coillte:
‘Shareholder/political support received in respect of the Group’s new vision and Coillte’s commercial mandate not [being[ blunted by political/public sentiment towards a non-commercial role.’
The above statement from Coillte, applying for the period 2020 to 2024, flies in the face of the statement made by Ms Wall (page 9 of the decision dated 10 May 2023) that withholding the requested information ‘can allow Coillte [to] better fulfil its functions, themselves in favour of the public.’ (That is, of course, unless Coillte takes the view that its actions are in favour of the public even if the public sentiment is opposed to those actions. That would be an exceedingly arrogant stance to take.)
It is clear from the above statement made by Coillte that if there is a conflict between, on the one hand, the pursuit of their commercial interests and, on the other hand, the pursuit of protecting the environment, Coillte will choose their commercial interests, despite and irrespective of the current views of the public.
The commercial mandate of Coillte is also recognised by others. For example, I attach the ‘Meeting note, Land Evidence Forum, 2 September 2021’ received from DAFM under AIE/22/052.
(named individual) (EPA) on the question of Group Membership stated Coillte ’have a profit angle on land use decisions. Is that a conflict for national discussions on land use decisions?
(named individual from EPA) understands that Coillte will not come to the national conversation on land use without their profit objective also in tow.
The purpose of this AIE request is to obtain information in order to assess whether any individuals within ‘key management’ are possibly conflicted between what is best for their own financial position and what may be best for the environment (which is of known concern to the public).”
Article 3 (1) (c) of the AIE Regulations includes within the scope of environmental information:
‘(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.’
I contend that the planning, directing and controlling the activities of Coillte CLG is a measure within the context of Article 3 of the Regulations and the information requested is related to that measure. How Coillte conducts its business is an activity affecting or likely to affect elements of the environment’.
Ms Wall, in her decision dated 10 May 2023, agrees with me that ‘the information requested falls to be considered under part c of this definition’ of environmental information.
However, in relation to Article 3(1), after this agreement we part company. Ms Wall states:
‘Coillte is not of the view that the remuneration of its staff members is a measure with a real and substantial possibility or capability of impacting the environment. In this instance, Coillte considers any link between the payment of its staff, and environmental impacts arising therefrom as overly remote to qualify as Environmental Information for the sake of the AIE Regulations’
If any members of key management themselves have a personal vested financial interest in pursuing a commercial mandate over an environmental mandate, then this fact in itself has the potential to have a direct impact on the environment in terms of the choices asked to be made by key management in their ‘planning, directing and controlling’ of the activities of Coillte.
I contend that the requested information is environmental information for the purposes of the AIE Regulations and Coillte's reliance on Article 3 (1) is not justified”
16. On 13 July 2023, Coillte responded to this Office’s request for submissions as follows:
“You have asked whether Coillte would like to make a final submission. In that regard, Coillte notes that no particular issues or questions have been raised by the Commissioner (or his investigator) for Coillte to respond to. Accordingly, Coillte has no submission to make, and relies for its full meaning and effect on the first instance decision and internal review decision notified to the appellant. However, should the Commissioner or his investigator identify any issues or questions to which responses are considered necessary before deciding on the matter, then Coillte will be happy to respond.”
Definition of Environmental Information
17. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with article 2(1) of the AIE Directive, article 3(1) of the AIE Regulations provides that "environmental information" means:
"any information in written, visual, aural, electronic or any other material form on –
(a) 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, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(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,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and 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). "
18. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43).
19. However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
20. In my view, paragraph (c) of the definition, which provides that “environmental information” means any information on 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, is the most relevant to this review.
Identification of a measure or activity
21. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20, emphasis added), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
22. The appellant contends that the requested information constitutes a measure - “the planning, directing and controlling the activities of Coillte CLG is a measure within the context of Article 3 of the Regulations and the information requested is related to that measure. How Coillte conducts its business is an activity affecting or likely to affect elements of the environment’. Looking carefully at the information requested by the appellant in this case, I think the appellant’s description of the measure is too broad and all encompassing. To my mind it is more accurate to identify the relevant measure or activity in this request as being Coillte’s decision to operate a bonus scheme for key senior personnel specifically based on either individual or team performance – and its decision on how such a bonus scheme is structured. Considering this, I am satisfied that Coillte was engaged in an administrative activity within the meaning of Mecklenburg – and that these are measures or activities within the meaning of paragraph (c).
23. Coillte in its original decision disagreed that the information at issue falls into any of the categories A-F under article 3(1) of the AIE Regulations. However I note that it said in its internal review: “It is objectively clear that information on the remuneration of Coillte staff does not of itself concern the state of the elements, nor any release into the environment with a likely effect thereupon. In that regard, at most the information requested falls to be considered under part c of this definition.” Therefore, Coillte now does not appear to be disputing that the information requested falls within the meaning of measures or activities in Part C of article 3(1) of the AIE Regulations.
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
24. To meet the definition at article 3(1) paragraph (c), the measure or activity must affect or be likely to affect the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) or designed to protect the environment (Redmond at paragraph 57). A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond at paragraph 63).
25. Paragraph 65 in particular states: “…it appears to me that, for the purposes of paragraph (c) a measure or activity is ‘likely to affect’ the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Something more than a remote or theoretical possibility is required (because that would
sweep too widely and could result in the ‘general and unlimited right of access’ that
Glawischnig v Bundsminister für soziale Sicherheit und Generationen (Case C -316/01)
EU:C:2003:343 indicates the AIE Directive was not intended to provide) but it is not
necessary to establish the probability of a relevant environmental impact (because that
would, in my opinion, sweep too narrowly and risk undermining the fundamental
objectives of the AIE Directive).”
26. It is also important to note that the actual outcome of a measure or activity is irrelevant. In this respect, I note the analysis of Hogan J in Minch at paragraph 40 of his judgment.
27. I have outlined the positions of the parties in considerable detail above, and have had regard to the decisions and submissions of both parties. The appellant’s main point in relation to the probability of a relevant environmental impact is: “The purpose of this AIE request is to obtain information in order to assess whether any individuals within ‘key management’ are possibly conflicted between what is best for their own financial position and what may be best for the environment (which is of known concern to the public).”This statement indicates that there is only a mere possibility of a link between the measure and the impact on the environment, and to my mind the appellant is seeking the requested information to assess if such a link exists.
28. I think in this case it cannot be said that the measure is “likely to affect” the elements and factors of the environment in the manner described in paragraph (c ). I consider the connection between Coillte’s decision to operate a bonus scheme for senior personnel and its decision on how to structure such a scheme, and any consequent effect on the environment to be overly remote and at best minimal and tenuous. I cannot but conclude that such a connection as described by the appellant is no more than a hypothetical possibility. As the appellant has herself said it “has the potential” – this is not a likelihood and at the appellant’s own admission it is merely a possibility. I consider the effect on the environment to be theoretical and too remote to meet the test set out in Redmond.
29. I acknowledge that the decision to operate a bonus scheme for senior personnel and the decision on how to structure such a bonus scheme may have a knock-on implication on the environment, but this is arguably the case for the remuneration of any employee, to some degree or another, working in an organisation or body (governmental or otherwise) which deals with environmental matters.
30. I find, therefore, that the decision by Coillte to run a bonus scheme for key management personnel and its decision on how to structure that scheme, is a measure and/or an activity within the meaning of paragraph (c) but it is not likely to affect the environment. For me to agree that this measure is likely to affect the elements and factors of the environment there would have to have clear evidence for example of a likelihood of, as the appellant asserts, a conflict between what is best for the financial position of the key management personnel that are subject to the bonus scheme at issue, and what is best for the environment. Nothing in the submissions of either party or from my own research has led me to the conclusion that this is the case. For me to find otherwise would be contrary to case law and “sweep too widely”, resulting potentially in the ‘general and unlimited right of access’ that Glawischnig v Bundsminister für soziale Sicherheit und Generationen (Case C-316/01) indicates the AIE Directive was not intended to provide. Such an outcome would plainly expand the scope of AIE in a manner that would be in direct contradiction to the judgments of the national courts and the CJEU, which have clearly determined that the scope of the definition of environmental information is broad but not unlimited, as referenced above.
31. In all the circumstances, I am satisfied that the decision of Coillte to operate a bonus scheme for senior personnel, and its decision on how to structure such a scheme, are too remote for any impact on the environment.
Whether the information is on the measure or activity
32. Where the relevant measure or activity has the requisite environmental effect, one must consider whether the requested information is “on” that measure or activity within the meaning of article 3(1) of the AIE Regulations. In this case, having found that the relevant measure and/or activity – the undertaking of the Management Review – does not have the requisite environmental effect, it is not necessary for me to consider whether the requested information is “on” that measure or activity within the meaning of article 3(1) of the AIE Regulations.
Conclusion
33. In conclusion, I find that the information sought is not environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. I am also satisfied that the information sought is not environmental information within the meaning of any of the remaining paragraphs of the definition.
34. I make no other findings on the matter. Accordingly, I find that Coillte was justified in refusing access to the information sought.
35. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm Coillte’s decision.
36. 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. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
on behalf of the Commissioner for Environmental Information