Case number: CEI/08/0001
The Commissioner found that: (i) the Hill of Allen Action Group is an "applicant" within the meaning of that term in article 3(1) of the Regulations; (ii) the information sought is "Environmental Information" within the meaning of that term in article 3(1) of the Regulations; (iii) article 8(a)(iv) of the Regulations entitles the Council to withhold those parts of the information which qualify for legal professional privilege and the public interest served by disclosure does not outweigh the public interest served by refusal having regard to article 10(3) of the Regulations; (iv) article 9(1)(b) of the Regulations does not apply to any of the remaining information and the Council is not entitled to rely on this exception to withhold it; (v) with the exception of a small amount of information relating to the quarry's reserves, article 9(1)(c) of the Regulations does not apply to the remaining information and the Council is not entitled to rely on this exception to withhold it and (vi) article 9(2)(c) of the Regulations does not apply to any of the remaining information and the Council is not entitled to rely on this exception to withhold it.
On 24 September 2007, the Hill of Allen Action Group, care of Mr Brian O'Loughlin, Chairperson requested the following from Kildare County Council:
The Action Group (the applicant) referred to Directive 2003/4/EC and the European Communities (Access to Information on the Environment) Regulations 2007 (S.I .No 133 of 2007). In its decision of 26 October 2007, the Council released some information and refused information relating to the Judicial Review Proceedings. The applicant applied for an internal review of that decision on 17 November 2007. It identified certain additional information which, it said, should have been included in the documents released. On 17 January 2008, not having received a decision from the Council on its internal review application, the applicant appealed the refusal to my Office.
The information sought originated in a decision of 21 July 2006 by Kildare County Council under section 261 of the Planning and Development Act 2000 to require the quarry operator (Roadstone) to submit a planning application and an Environmental Impact Statement (EIS) in respect of its operation of the Allen Quarry. That decision was the subject of an application by Roadstone for Judicial Review in the High Court in respect of which the proceedings were struck out on 30 July 2007. Since that time, the Council and Roadstone appear to have engaged in negotiations with a view to securing agreement on the operation of the quarry under section 47 of the Planning Act.
The Council has provided copies of the documentation to my Office. The information to be examined in this appeal comprises documentation from the Executive Planner's file, the Council's "Judicial Review File" and a small amount of information from the legal adviser's file.
In its decision, the Council refused access to the information relating to the Judicial Review proceedings under article 9(1)(b) of the Regulations on the basis that disclosure would adversely affect the course of justice. Following a request (first made on 22 January 2008) from my Office, the Council carried out a reconsideration of its position in the light of its failure to deal with the internal review application made by the applicant. In its letter of 14 May 2008 to the applicant, it reiterated its refusal of access to information relating to the High Court proceedings, correspondence with its solicitors and information relating to the proposed agreement with Roadstone under section 47 of the Local Government (Planning and Development) Act 2000. It released a copy of File QR28 and its "Historic Monuments" file. It said that all of the contents of its Unauthorised Development File had already been released to the applicant.
The applicant argues that, as there is no case pending, the refusal to supply information on the judicial review proceedings is invalid. It says that it is entitled to know why the planning application and EIS were not pursued by the Council and that, if the normal planning procedure had been followed, it would have had the right to consider the proposals, make observations and exercise a right of appeal if necessary. As things stand, it has not been able to have an input into the planning process despite having attempted to become involved in the Judicial review proceedings as a Notice Party. It expressed concern and disappointment about the delays by the Council in providing the information required to see whether or not the Council acted correctly.
In its response to my Investigator's "preliminary views" letter of 22 January 2008, the Council made a submission dated 20 February 2008. It set out the background to the case, including the Judicial Review proceedings. Raising the question of whether the information requested was "environmental information" as defined in article 3 of the Regulations, the Council said that, while information relating to the registration process under section 261 and the agreement under section 47 of the Planning Act "is likely to constitute environmental information", the definition did not extend to the Judicial Review proceedings. It further argued that to release the pleadings relating to the proceedings when the implementation of the settlement had not yet concluded would be "contrary to the interests of justice". The Council said that to disclose such information could prejudice the negotiation of the section 47 Agreement. It accepted that there had been a delay in having the Agreement signed but said that it expected that this would be finalised "within the next 10 days" i.e. by 1 March 2008. At the date of the drafting of this decision in September 2008 I am advised that the Agreement has still not been signed. According to the Council, it is under an obligation to make the section 47 agreement available to the public when it is finalised.
The Council's position on the information comprising correspondence with its legal advisers is that such communications qualify for legal professional privilege and access should be refused under article 8(a)(iv) of the Regulations. It stated that, notwithstanding the public interest override in article 10 of the Regulations, release of privileged information would be severely prejudicial to the Council and to the execution and implementation of the section 47 Agreement. It said that the Council should be entitled to obtain its own legal advice without fear of this being made public and that such certainty is required for the good and proper administration of Local Government. It also clarified that affidavits on behalf of the Council were not finalised or sworn before the proceedings were struck out.
The Council further submitted that some of the documentation submitted to it by Roadstone as part of the negotiations around the section 47 Agreement was commercially sensitive and that Roadstone had expressly requested that it be kept confidential.
In its letter of 14 May 2008 to the applicant, the Council said that information on the proposed section 47 agreement must be refused where the material is still in the course of completion and that it would not be in the public interest to release this type of information, particularly as it arises out of the High Court proceedings.
In a further submission of 21 May 2008, the Council said that it remained hopeful that the case could be settled. It expressed the view that release of affidavits filed by Roadstone in the Judicial Review proceedings would not be in the public interest until the section 47 Agreement had first been concluded. It said that it expected the Agreement to be signed within 21 days.
On 29 April 2008, my investigator wrote to Roadstone and invited it to make submissions on the question of whether its interests might be affected by the release of some of the information. In particular, she provided copies of Roadstone's correspondence with the Council and asked that it identify any commercially sensitive material in the relevant documents. She invited it to give details of any harms that it envisaged would result from disclosure of the information and to indicate if any law was relied upon to protect any particular economic interest in that regard. My investigator pointed out that, even if the material was found to qualify for the commercial confidentiality exception in article 9 of the Regulations, it would be necessary to consider whether it should be released in the public interest. She identified some of the public interest factors in favour of disclosure.
In response, Roadstone made a brief submission dated 15 May 2008 in which it stated that the request was invalid because the Hill of Allen Action Group had no locus standi as an applicant under the Regulations. Without prejudice to this, it referred to certain documents which, it said would constitute "commercially and industrially confidential" information and should be refused pursuant to article 9(1)(c) of the Regulations.
For convenience, the key legal provisions identified as relevant to this appeal are set out below
The Directive guarantees a right of access by the public to environmental information held by or for public authorities; the Directive also sets out "the basic terms and conditions of, and the practical arrangements for", the exercise of this right. The Directive has been given effect in Ireland by way of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), made by the Minister for the Environment, Heritage and Local Government.
Article 3(1) defines "applicant" as "any natural or legal person requesting environmental information pursuant to these Regulations ".
Article 3(1) of the Regulations defines "environmental information" as
"any information in written, visual, aural, electronic or any other material form on- ".
(a) the state of the elements of the environment... and the interaction among these elements,
(b) factors, ... affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures)...designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c);
Article 8 of the Regulations carries the side heading: "Grounds that, subject to article 10, mandate a refusal". Article 8 includes among the grounds that, subject to article 10, "mandate a refusal" the following provisions:
"8. A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information -
(a) would adversely affect -
.... (iv) without prejudice to paragraph (b), the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts); ".
Article 9 of the Regulations is headed "Discretionary grounds for refusal of information". Article 9(1) provides that a public authority may refuse to make available environmental information where disclosure would adversely affect:
(b) the course of justice (including criminal inquiries and disciplinary inquiries),
(c) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest, or ...."
Article 9(2) states that a public authority may refuse to make environmental information available where the request -
"...(c) concerns material in the course of completion, or unfinished documents or data..."
The relevant provisions of article 10 provide:
"10. (1) Notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment.
[(2)...]
(3) The public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.
(4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
(5) Nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
(6) Where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion"
Article 14 of the Regulations provides that, in performing functions under the Regulations, public authorities "shall have regard to any guidelines published by the Minister". The Minister has published such guidelines and, to the extent relevant, I have had regard to these guidelines in the course of this appeal.
It will be clear from this decision that the Council failed in a number of respects to comply with the Regulations and the Directive in its processing of the request. In particular, the original decision which makes no reference to public interest considerations or to records being withheld which were not part of the judicial review proceedings. In addition, the Council failed to respond to the internal review application and the long delay in considering the release of further information to the applicant is in conflict with the core objectives of Directive 2003/4/EC. The result of the reconsideration of its position carried out by the Council at my Office's request was notified to the applicant almost four months after it was requested by my Office. In relation to delay, I regret that my Office has not been in a position to finalise this case as quickly as I would have wished. However, having been given indications from the Council at various stages that the case might be capable of settlement through release of at least some of the information sought, my staff spent considerable time and effort in working towards facilitating such settlement until it became clear that a formal, binding ruling was necessary.
Roadstone's position is that The Hill of Allen Action Group is not a natural or legal person within the definition of "an applicant" in the Regulations. It argues that the request made is invalid on the basis that the persons making it have no standing under the Regulations. Accordingly, I have to decide first whether the Action Group is properly an applicant whose appeal I can adjudicate upon under the Regulations.
The definition of applicant in article 3 of the Regulations as set out above is similar to that in Article 2 of the Directive. The original request to the Council and all subsequent written correspondence to my Office, including the signed appeal of 17 January 2008, were made by a named individual described as Chairperson of the Hill of Allen Action Group. An address and telephone number were provided. Accordingly, since it was dealing with an identifiable individual, my Office did not consider it necessary to establish whether the group was limited by guarantee. A somewhat similar situation arose in a case dealt with by the High Court in National Maternity Hospital v the Information Commissioner [2005] No. 49 MCA] (judgment delivered 30 March 2007), in which Quirke J found that I (as Information Commissioner) was entitled to accept an application from a "person" who was a requester under the Freedom of Information (FOI) Acts in circumstances where the group concerned had not been incorporated as a company at the time of the FOI request. However, Judge Quirke said that had the application for review been made by the company limited by guarantee which the group subsequently became, it is unlikely that I would have been empowered to conduct the review.
Furthermore, the High Court (see, for example, Sweetman v An Bord Pleanála [2007] IEHC 153) has held that European directives fall to be interpreted in the light of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). Article 4 of the Convention sets out a framework through which members of the public can gain access to environmental information. The Convention defines "the public" as meaning "one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups". "The Aarhus Convention: an Implementation Guide" [ECE/CEP/72] states that the definition of "public" applies the "any person principle". The term public is not subject to any conditions so that the issue of whether a particular member of the public is affected by or has an interest in the matter is not significant where rights under the Convention apply to the public.
I consider that nothing in the Regulations, the objectives of Directive or the Aarhus Convention allows me to deem this appeal invalid on the grounds put forward by Roadstone. I note also that at no stage did the Council query the standing of the applicant.
Although it did not pursue this argument in its most recent submissions, I have considered the Council's view that the information on the Judicial Review proceedings is not "environmental information". The Council said that the court proceedings represent a challenge to the Section 261 registration process as opposed to constituting part of the registration process itself. It applies this distinction to the definition of environmental information and argues that it is information on a measure (i.e. on the registration process) which constitutes environmental information and not information in connection with or arising out of a measure (i.e. the Judicial Review proceedings).
Even if I were to accept the narrow definition of "information on a measure" put forward, I consider that paragraph (f) of the definition must also be considered. It extends the definition of environmental information to include the direct and indirect effects of the factors (substances, noise, waste, emissions, discharges) in paragraph (b) of the definition on human health and conditions of human life. Essentially, this is a planning case and all of the information, including that on the Judicial Review relates directly to the operation of and regulation of quarrying at a particular site. My conclusion might be different if the content or purpose of the information on the judicial review proceedings was remote from the effect of the quarry on the environment. In other words, I consider that matters - including litigation arising from the control of the operation of the quarry - are sufficiently connected to factors and measures which affect the environment to be classed as environmental information in this particular case.
The Council's position is that communications between it and its legal advisers in connection with both the preparation for legal proceedings and confidential advice in relation to the drawing up of the section 47 Agreement with the developer are exempt from disclosure under article 8(a)(iv) on grounds of legal professional privilege. The applicant accepts that the Council is entitled to rely on this provision in relation to some of the information. However, in the interests of certainty, I think it is best that I make a formal ruling as to which of the documents qualify for legal professional privilege in this case.
Legal professional privilege enables the client maintain the confidentiality of two types of communication: confidential communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and communications made between the client and a legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated pending litigation. Both types of communication are found on the Council's files.
I find that the documents listed below, including some internal communications and draft documents disclosing legal advice, meet the test for legal professional privilege under the common law rule (incorporated into the section 22(1)(a) exemption in the Freedom of Information Acts 1997-2003) so that the Council is entitled to rely on article 8(a)(iv) in relation to them.
Article 8(a)(iv) is subject to the public interest test at article 10(3) of the Regulations. Given the importance that the courts have placed on the confidentiality of the lawyer-client relationship, I think that there would have to be exceptional public interest factors at play before legal professional privilege could be set aside. Clearly, the Directive and the Regulations envisage that circumstances will arise where information qualifying for legal professional privilege would be released in the public interest. However, given my finding below that other records should be released which explain the background and progress since the proceedings in this case, I think that the public interest in the applicant knowing the detailed exchanges between the Council and its lawyers does not outweigh the public interest in upholding legal professional privilege in this particular instance.
Executive Planner's File: 4 - 12, 14-17, 19, 21- 24, 26, 30, 33, paragraph 3, page 11 of 34, 35, 37 - 48, 51-52, 62, 63.
Judicial Review File: hand-written notes on 1; 2, 11, 12, 14, 16-17, 19-20, pages 1-2 of 21, 22-26, 28-29 (duplicate), 31-32, 40, 43, 45, 47, 50- 54, 57, 64.I will now go on to consider the remainder of the information in the context of the various provisions of the Regulations cited by the Council.
Legal Advisor's File: 1-3.
I note that this was the sole ground for refusal advanced in the Council's original decision.
Apart from the legal advice and preparation for litigation information discussed above, the information forwarded by the Council includes copies of an affidavit and Statement of Claim filed by Roadstone in the Judicial Review proceedings which were struck out. I consider that the Council has failed to make any case to justify its use of the ground for refusal at article 9(1)(b) of the Regulations. The proceedings are no longer in existence and it is difficult to see how the course of justice would be adversely affected by the release of the information in these circumstances. It is important to note that article 9(1)(b) requires that the course of justice (including criminal inquiries and disciplinary inquiries ) would have to be adversely affected before this exception can be used to withhold environmental information. I doubt if this exception could properly apply to these particular records even if the case had gone ahead in the courts. The affidavits filed would, presumably, have been opened to the court in the course of the hearing. The content could have been made publicly available through the hearing itself and through media coverage of the arguments made. In that event, adverse affect through disclosure under the Regulations would not arise. More generally, I take the view that to adversely affect the course of justice, one would have to cause some procedural or other unfairness that could prejudice the court's decision.
The information in the affidavit and Statement of Claim is not in a record created by the court nor is disclosure to the general public prohibited by court order.
In its most recent submission, the Council says that it would be "contrary to the interests of justice" to release documents relating to the ongoing settlement discussions on the Section 47 agreement. If this is intended to be an argument that article 9(1)(b) should apply to that information, I am not convinced by it. The process of agreeing a settlement between the parties is not being pursued "in the course of justice" as required by article 9(1)(b); there are no civil or criminal proceedings in train. Therefore, it is not necessary to consider whether disclosure of such information would have an adverse effect on the course of justice.
As I have found that article 9(1)(b) does not apply, it is not, strictly speaking, necessary for me to consider whether the public interest would be better served by disclosure under article 10 of the Regulations. However, while I make no formal findings on the matter, I wish to make some comments on the submissions of the Council in which it is argued that release of information contained in the Roadstone affidavit and in other documents might "jeopardise the ongoing implementation of the settlement and affect "the compromise being reached".
If this is to be construed as an argument that the public interest in withholding the information is stronger than the public interest in disclosure, I am not convinced by it. There is a strong public interest in the public being aware how a quarry operation is regulated particularly given the potential emissions and effects that the operations could have on the environment. In the normal course of events, the applicant would have been in a position to inspect a planning application, make submissions and have these considered by the planning authority. It would have had access to an Environmental Impact Statement and would have had appeal rights to An Bord Pleanála if it considered that the Council's conditions were insufficient to protect the environment. As things stand, the Council has, apparently, decided that it cannot exercise its powers under section 261 of the Planning and Development Act 2000 to have a planning application and EIS submitted and that a section 47 agreement with Roadstone will be drawn up instead. It is not for me as Commissioner for Environmental Information to comment on the merits of that approach. Nonetheless, I draw attention to the fact that the Section 47 Agreement process has being going on for over a year. The public interest in release of information might be weaker if the public had already had an opportunity to be informed of the reasons for decisions taken and for the delay in regulating the operation.
In relation to versions of material which may differ from the final agreement, the position is that some of those drafts disclose legal advice received and come within the legal professional privilege exception dealt with above. In relation to the remainder, I do not see how disclosure of such information would hinder the reaching of agreement. Presumably, further negotiations have generated additional draft proposals since September 2007 which information is not within the scope of this review. I consider that the applicant should recognise parts of the documentation as drafts which may inform the final agreement. I do not think it is reasonable or permissible within the provisions of the Directive for all of this type of environmental information about the operation and regulation of the quarry to be withheld indefinitely. The public interest in participation by affected persons in environmental issues and in the dissemination of environmental information is strengthened by the provisions of Directive 2003/4/EC.
Neither Roadstone nor the Council have responded in any detail to my Office's request that they identify the information for which the claim of confidentiality is made together with the adverse affect that disclosure of the information would have on commercial or industrial confidentiality. Neither has the required legal provision "to protect a legitimate economic interest" been identified. Nonetheless, I am prepared to accept that disclosure of the extent of the quarry's reserves might have an adverse affect on the Company vis á vis its competitors or otherwise. The applicant has agreed that the parts of the documents which disclose such information can be excluded from any information released.
In relation to other information in documents submitted by Roadstone, I am not convinced that the information has the necessary quality of confidence having regard to the law of confidence. Given that no specific national or Community law has been identified, it seems to me that for article 9(1)(c) to apply, disclosure of the records concerned must amount to a breach of an equitable duty of confidence. The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611) in which Megarry, J. stated as follows:
'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'
I do not believe that the type of information including factual information about the site of the development and information on methods of operation including, inter alia, control of noise and dust emissions which would normally be required and open to public inspection in a planning application or in an Environmental Impact Statement can be treated as "secret" in this context. Indeed, I note there is, under article 10(1) of the Regulations, a prohibition on refusing a request for environmental information where the request relates to information on emissions to the environment.
Accordingly, subject to the exclusion of details of the quarry's reserves in parts of the information identified in my decision set out below, I find that article 9(1)(c) does not apply to the information in this case.
In considering whether the Council is justified in exercising its discretion under article 9(2)(c) of the Regulations to withhold information (i.e. those documents not excluded from release on the basis of legal professional privilege), I must address whether the material around the section 47 Agreement is "in the course of completion". My conclusion, having had regard to the content of the material and to "The Aarhus Convention: an Implementation Guide" is that the documents concerned are not being actively worked on by the Council. Although they have not been incorporated into a final agreement, it seems to me that they are complete in themselves and that further documents and drafts of documents have been created as part of the ongoing process since the making of the request for the information. If, for any reason, the section 47 Agreement was never signed, it could not have been the intention that this exception would apply to withhold the information indefinitely. In coming to this conclusion, I have taken into account the requirement at article 10(4) of the Regulations that the grounds for refusal shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
It is important to note that, where a public authority refuses a request because it concerns material in the course of completion, it is required under article 10(6) of the Regulations to inform the applicant of who is preparing the material and the estimated time of completion. The Council's refusal did not do this. Indeed, its decision did not make any reference to material being in the course of completion until its letter of 14 May 2008 to the applicant when it had undertaken a late reconsideration of its position at the request of my Office. My Office was informed at various times by officials of the Council that completion of the section 47 agreement was imminent. While the delay in reaching agreement with Roadstone may have been outside of the Council's control, the fact is that estimates of the completion date - however inaccurate these proved to be - were not given to the applicant. Accordingly, even if I were to accept that the request concerns material in the course of completion or unfinished documents or data, I do not consider that the Council is entitled to rely on this exemption.
Having decided that article 9(2)(c) does not apply, there is no need for me to consider here the public interest arguments in favour of release or withholding of the information.
In accordance with article 12(5) of the Regulations, I have reviewed the decision of Kildare County Council in this case. I hereby annul the Council's decision and direct that the information requested be made available to the Hill of Action Group with the exception of the following parts:
Executive Planner's File: 4 - 12, 14-17, 19, 21- 24, 26, 30, 33, paragraph 3, page 11 of 34, 35, 37 - 48; second and third paragraphs of page 2 (letter) of 49; 51-52, 62, 63.
Judicial Review File: hand-written notes on 1; 2, 11, 12, 14, 16-17, 19-20, pages 1-2 of 21, 22-26, 28-29 (duplicate), 31-32, 40, 43, 45, 47, 50- 54, 57, 64; second and third sentences of letter in 65; second sentence in paragraph 2, page 1 of 69; second sentence in paragraph 2, page 1 of 70; paragraph 3.3, including table, as far as "The Aerial..."in page 4 of 70; second sentence in paragraph 2 in page 5 of 70; headings 2005-2014 in pages 6-7 of 70.
As the request related to information on the Allen quarry only, material relating to the other quarry mentioned in some of the documents should be redacted from the copies to be released.
Under article 12(7) of the Regulations, the Council is obliged to comply with my decision "within three weeks after its receipt". Where a public authority fails to comply with my decision within that time, article 12(8) provides that I may apply to the High Court for an order directing compliance with that decision.
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 is given.
Emily O'Reilly
Commissioner for Environmental Information
22 September 2008