Case number: CEI/08/0012

Appeal to the Commissioner for Environmental Information

Case CEI/08/0012

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Councillor Tommy Cullen, Deerpark, Baltinglass, Co. Wicklow

Public Authority: Department of the Environment, Heritage & Local Government

Issue: Whether the Department was justified in its refusal of access to environmental information sought by the appellant.

Summary of Commissioner's Decision:

The Commissioner found that the Department's decision to refuse parts of the request was not justified except in relation to those parts of the information which she found qualified for legal professional privilege. She found that certain records and parts of records came within the exception in Article 8(a)(iv) of the Regulations and that, in accordance with Article 10, the public interest in granting that part of the request did not outweigh the interest served by refusing it.

She found that the other withheld records did not come within the exceptions in Articles 8 and 9 of the Regulations and she directed their release. She thereby varied the decision of the Department and directed it to make environmental information available to the appellant.

Her decision also commented upon the handling of the request by the Department.

Background

A request was made under the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No.133 of 2007) to the Department of the Environment, Heritage and Local Government (the Department) on 18 July 2008, for access to:

(a) and (b) all correspondence, reports, minutes of meetings and memos and internal communications between the Department and Wicklow County Council, the Environmental Protection Agency (EPA) and all other parties on the issue of illegal dumping in Wicklow in the period January 2001 to July 2008;

(c) all records including those of the Local Government Audit Office on the issue of a waste licence at Ballybeg, Rathnew, Co. Wicklow and

(d) all communications between the Department and the Council and internal records concerning the making of the Baltinglass Town Plan.

In its decision of 13 August 2008, the Department identified several files relating to the request and advised that it was granting access to the information with the exception of some documents withheld on the grounds of exceptions provided for in the Regulations. It mentioned that some of the documents related to European Court of Justice(ECJ) proceedings against Ireland, some contained legal advice or were connected with separate legal proceedings, some were internal communications of public authorities and one was being withheld by the Local Government Audit Service by reference to a provision of the Freedom of Information (FOI) Acts. It said that it would be ''a better use of resources'' if the Appellant were to inspect the files and mark those pages he wished to have copied. It invited the Appellant to view the files and I understand that he took up this invitation on 25 August 2008. The decision was then appealed by the Appellant under article 11 of the Regulations on 4 September 2008 and four additional records were released in the Department's internal review decision on 3 October 2008. The Appellant appealed the decision to my Office by letter received on 4 November 2008. The appeal was accepted as valid on 18 November 2008.

In arriving at my decision, I have taken account of the submissions of the Appellant and the Department and of the legislation governing access to environmental information i.e. the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive). I note here that, in addition to his written submissions, the Appellant contacted my Office by telephone on many occasions and made numerous oral submissions. I have examined the withheld information as copied to my Office by the Department. As the Appellant is aware, my staff met with officials of the Department in the course of this appeal in an effort to clarify the extent of information held and Department's approach to identifying and providing that information.

Scope of Review

My review is concerned solely with the question of whether the Department's decision was justified under the Regulations and the Directive.

The Regulations set out the circumstances in which an appeal may be made to the Commissioner. Under Article 12(3), an appeal may be made against a decision of a public authority under Article 11, i.e. against an internal review decision. In turn, a request for an internal review under Article 11 must relate to a request which has been refused under Article 7 which provides for the action to be taken on a request for environmental information. Therefore, the scope of the review by the Commissioner is limited to that of the original request.

My Office asked the Department to provide a schedule showing the records identified by the Appellant on his visit to the Department and indicating the records to which access was granted and the records from the relevant files to which access was refused. A copy of the scheduled records themselves was also sought and received. In the course of preparing this schedule, the Department identified further records which were relevant to the request for information. Sixteen additional records were released to the Appellant at this point in December 2008.

In her letter of 23 January 2009 to the Appellant, my Investigator, Ms. Brenda Lynch, enclosed a copy of the schedule and asked him to confirm that he had been granted access to those records marked "grant". The Department provided a copy of its letter to the Appellant of 28 August 2008 in which it said that the records 'tagged' by the Appellant were attached. In the absence of evidence to the contrary, I am taking it that the Appellant has been given access to these records. The Appellant did, however, identify further records which he believed were relevant to his request and which had not been made available to him or included in the schedule. On foot of further enquiries from my Office, the Department identified six additional records relevant to the request - of which all except one page were released. Subsequently, in April 2009, the Department identified a further twelve relevant records, of which nine were released. On examination of all of the information to which access was refused, I noted that Record 184 postdated the original request and therefore is outside the scope of the appeal.

My Investigator sent her preliminary views to the Department on 17 June 2009. She dealt with the information remaining within the scope of the review at that point in time, which comprised records numbered 47-68, 87-88, 94-96, 98-102, 105, 130, 148-149, 152, 161-7, 182 and 183 and the withheld parts of records of 131, 136 and 168 together with a draft report from the Local Government Audit Service. In its response, the Department accepted her views in relation to some of the information then within scope and agreed to release further records to the Appellant. These records were then removed from the scope of the review.

As a result, the records within the scope of the review, to which this decision relates, are those which the Department has identified as being refused by it and over which it maintains its position that access should be refused to all or part of the record under the Regulations. These are records numbered 48, 52, 61, 62, 63, 64, 65, 66, 67, 68, 87, 130, 50, 99, 101, 105 and 164 and parts of 51, 58, 88, 136, 147, 161, 165 and 167 and a draft report from the Local Government Audit Service.

Analysis and Findings

Before I examine the exceptions cited in relation to the withheld records, I wish to make some observations on the circumstances of this appeal.

Status of the Appellant

The Appellant argues in his submissions that the withholding of the information is against the common good and the public interest. In some of his submissions, he says that, as an elected representative, he is entitled to have full knowledge of all matters that have a direct connection to the functions of the local authority which he serves. He implies that my Office should facilitate him in this as an elected representative and that it is contrary to ''ethics legislation'' for officials to deny him the information that he seeks. Lest there be any doubt on the matter, I wish to point out that the Regulations and the Directive which give me jurisdiction in this case do not make any distinction between the rights of ordinary members of the public and the rights of elected representatives to have access to environmental information held by public authorities. Article 3(1) of the Regulations defines "applicant" as "any natural or legal person requesting environmental information pursuant to these Regulations " and there is no provision for the taking into account of the applicant's interest in the matter the subject of the request. Therefore, it seems to me that, subject to consideration of the public interest, the Appellant in this case has no greater or lesser right to the information sought than any other applicants would have if they sought the same information under these Regulations. Whether the Appellant has separate or additional rights under any other code is not a matter with which I can concern myself in this review.

The handling by the Department of the request and appeal
Identification of records

A particular difficulty which has arisen in dealing with this appeal is the identification of records relevant to the request. Considerable resources have been put into determining whether all records within the scope of the request and of this appeal have been identified. While I acknowledge that the original request was quite broad and that the Department has cooperated with all requests from my Office, it is disappointing to have to note that further relevant records were being identified as late as April 2009, despite the fact that the relevant information was first sought from the Department by my Office in November 2008. I am glad to note that the Department is currently reviewing its Records Management Strategy with a view to informing staff of best practice in this area. However, it seems to me that, irrespective of whether a request to the Department fell to be processed under FOI legislation or under the Regulations on Access to Environmental Information, the systems in place in the Department to identify information held in various sections failed in this case. I find the situation all the more worrying in view of the fact that the provisions of the FOI Act have been in place for over 11 years so that any claim that this is a new regime in which the Department has had little experience of or requirement to identify and retrieve similar records is simply not tenable.

Article 11(5)(b) of the Regulations provides that a reference to a request refused includes a request which has been inadequately answered. In this case, while the Department adhered to the relevant deadlines in dealing with the original and internal review requests, and facilitated the applicant in viewing of files, it has since emerged as outlined above that additional records relevant to the request were identified following requests from this Office. Three further sets of relevant records came to light. This calls into question the efforts made by the Department to fully identify all relevant information at the outset.

When this Office wrote to the Department advising that the appeal had been accepted, the Department was asked to provide copies of all relevant information. In its response, the Department advised that one relevant file, described above, was missing and could not be found despite extensive searches. I have been unable to establish if this file was missing at the time of the Appellant's original request. The Department has advised me that the file was only discovered to be missing in November 2008 when this Office notified it of the appeal. The Department said that a search was not carried out a the time of the original request because it presumed that audit matters where exempt. Clearly, this presumption should not have been made without an examination of the information in the file and a proper consideration of the public interest in releasing the information.

Although this observation forms no part of my decision under section 12 of the Regulations, I would expect the Department, if it should locate the missing file, to inform the Appellant of this. If he chooses, he may then exercise his right to request access to any environmental information contained therein including his right of appeal against any decision the Department might make as regards release of the information.

Failure to consider the public interest

A further concern I have relates to the level of consideration given by the Department's decision makers to the request under the Regulations. In particular, I consider that the original decision and the internal review decision failed to comply with the Regulations and with the Department's own published Guidelines on the Regulations through its inexplicable omission of the mandatory consideration of the public interest when refusing access to information. Article 10 of the Regulations (set out below) provides for this.

While the matter of the public interest is addressed below in my decision, I must emphasise that at no point does the Department appear to have addressed these crucial provisions, either in general terms or in relation to specific records in spite of the fact that the necessity to address the public interest was specifically raised by this Office in correspondence with the Department as far back as November 2008. Indeed, the Department's handling of the audit information referred to above was seriously deficient because, even if its assumption that the material came within one of or more of the provisions of the Regulations allowing refusal of such information was held to be correct, the public interest in releasing the information would have had to be considered. Overall, based on what occurred in this case, I am very disappointed in the Department's level of awareness of and compliance with the Regulations which give effect to Ireland's obligations under the Directive.

Reliance on grounds for refusal

While the Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying the use of the exceptions when refusing to make information available, I take it that the scheme of the Directive and the Regulations makes it clear that there is a presumption in favour of release of environmental information. This is reinforced by the provision at Article 10(4) which provides that the grounds for refusal shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. One of the difficulties my Office has had in this case in analysing whether the grounds for refusal have been properly applied in relation to the withheld records. The Department has, in its decisions and in its submissions, put forward very little detailed argument as to what adverse effect it expects would result from the granting of the request in respect of specific records by reference to the detailed provisions of sections 8, 9 and 10 of the Regulations. This means that while I will, of course, consider the applicability of the Articles cited by reference to the content of the records remaining at issue in the light of the Department's views, I do not consider that there is an onus on me in this appeal to make the Department's case for it or to import into my analysis a consideration of any potential adverse affects that the Department has not put before me. I am satisfied that the Department has had adequate opportunity to make arguments in support of its position and to have them considered in the course of this review.

Role of the Commissioner regarding whether information is held by or for a public authority

Among the submissions made by the Appellant are contentions that the Department should hold further records relevant to his request. Article 7(5) of the Regulations provides that:

"Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it".

This is effectively one of the grounds on which a public authority may refuse access to a request. Article 3 of the Directive requires public authorities to make available environmental information held by or for them. Paragraph 1(a) of Article 4 of the Directive allows for the provision by Member States for a refusal of a request where the information is not held for or by the public authority to which the request is addressed. It goes on to provide that where that public authority is aware that the information is held by or for another public authority, it shall transfer the request.

I note that the Directive has its origins in the UNECE 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" [ECE/CEP/72] says that if the public authority does not hold the information requested, it is under no obligation to secure it. It goes on to suggest that failure to possess environmental information relevant to a public authority's responsibilities might be a violation of Article 5, paragraph 1(a) of the Convention which relates to the requirement that public authorities collect, possess and disseminate environmental information.

A similar though not identical provision in relation to records ''not held'' exists in Section 10(1)(a) of the FOI Acts. As Commissioner for Environmental Information, I am guided in my approach by the Office of the Information Commissioner's experience over the past 11 years. In cases where the public authority claims not to hold the environmental information requested, I consider that my role is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public authority in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the information along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the information in question. On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the information is not held for or by the public authority. It is not normally the my function to search for records.

The Information Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In his decision, Mr. Justice Quirke stated: "I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision".

I consider that as Commissioner for Environmental Information, I am primarily concerned with ensuring public access to extant records in accordance with the provisions of the Regulations and the Directive. The Regulations do not provide for a right of access to records which ought to exist. Therefore, I do not have the authority to require a public authority to create records where such information records does not already exist or is not held by it.

In relation to the interpretation of Article 7(5) of the Regulations, I think that it is reasonable for me as Commissioner for Environmental Information to take a similar approach to that developed and approved by the High Court under FOI.

Legal Provisions

For convenience, the key legal provisions relevant to this appeal are set out below.

Article 8(a)(ii) and 8(a)(iv)

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 -

......(ii) the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information,

...... (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(1)(b) and Article 9(2)(c)

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)

Article 9(2)(c) of the Regulations provides that:

(2) 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

Articles 8 and 9 are subject to Article 10 which provides:

"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) The reference in sub-article (1) to information on emissions into the environment does not include a reference to any discussions on the matter of such emissions at any meeting of the Government.

(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."

Does environmental information exist which has not been released?

The Appellant contends that relevant material has been withheld; he alleges ''corruption'' and ''criminality". My Office has explained to him that it is concerned only with his right of access to environmental information under the Regulations and that my jurisdiction does not extend to an investigation of the wider issues surrounding waste disposal in Wicklow.

The Department has been asked by my Office on a number of occasions to confirm that all relevant information has been identified. It says that it has engaged in extensive searches of its offices to ensure that all paper and electronic records coming within the scope of the request have been identified. My understanding is that sections searched include Waste Policy Review and Regulations; Local Government Policy; Spatial Policy and Local Government Audit. When my Office put queries to the Department arising from the Appellant's contention that certain additional records would have been created (e.g. of an alleged meeting between the Minister for the Environment and named individuals in or around May 2008), its Corporate Development section said that it had no knowledge of any such records. Despite the fact that additional records were identified following enquiries made by this Office, I think it reasonable to now conclude on the balance of probabilities that adequate searches have been carried out across the various sections of the Department in the course of my review and that the officials with which my Office has been dealing have not given misleading information about the existence of additional records.

While the Appellant is clearly of the view that further records should exist, this does not necessarily mean that such records are actually held. As set out above, I do not consider it feasible for me to continue to pursue the possibility that additional records might exist or to physically search the Department's offices. It is necessary to bring this protracted case to a conclusion as required by the Appellant and to have regard to the reasonable use of my Office's resources.

The Department has advised that one particular file did exist but is now ''missing''. That file relates to the Local Government Audit Service's (LGAS) examination of the circumstances surrounding the issue of a waste permit for lands at Ballybeg, Co Wicklow. As discussed above, the Department's position is that even if the file had been to hand when it considered the request, it would be claiming exception from release for it. My staff pointed out to the Department that the definition of "environmental information" includes electronic records and that if any part of this file existed electronically, it would fall within the scope of this appeal and should be provided to my Office for examination. Following this, a draft version of the LGAS report was located and a copy provided to my Office by the Department. The Department claims that this draft report is exempt from release and I consider this further below. The remainder of the missing file is not available to me. I understand from the Department's Director of Audit that its staff carried out unsuccessful searches to locate the file. It appears that the file was held in Dublin as a draft report was prepared after the LGAS had, as part of its investigation, assembled relevant papers made available to it by Wicklow County Council and that, on reviewing the file, it was decided within the Department that it was not appropriate for the LGAS to issue a report on the matter.

Legal Professional Privilege

In refusing access to certain records the Department made reference to legal professional privilege. In its submissions in the course of the review, the Department made reference to grounds for refusal at Article 8(a)(iv) and 9(1)(b) of the Regulations quoted above. I consider that legal professional privilege is the type of claim for confidentiality that could be protected by law as envisaged in Article 8(a)(iv). If I find that certain records 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), the Department is entitled to rely on article 8(a)(iv) in relation to them subject to consideration of whether there is a public interest in releasing them. Legal professional privilege enables the client maintain the confidentiality of two types of communication: confidential communications made between the client and his/her professional 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 or pending litigation.

As regards Article 9(1)(b), the Department has not made the case that release of these records would adversely affect the course of justice and, in the case of the 'legal advice' type records, I do not propose to make a finding that their release would have such an impact.

Articles 8(a)(iv) and 9(1)(b) are 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. However, the Directive and the Regulations clearly envisage that circumstances will arise where information qualifying for legal professional privilege would be released in the public interest.

For ease of reference I will deal with the refused records (including those part released) in groups.

Records 50, 99, 101, 105, 130, 164 and parts of records 51, 58, 88, 136, 167

The Department's position is that these records are legally privileged in that they relate to correspondence between it and its legal advisers or are correspondence between a legal adviser and a third party, the dominant purpose of which is the preparation for contemplated litigation.

Having examined the records, I find is that record 50 is wholly comprised of legal advice from the Attorney General's Office and there is no doubt but that it attracts legal professional privilege. Record 51 includes some internal memos, the authors of which are not professional legal advisers and not all of which disclose any legal advice. Neither is there any indication that the memos were prepared with the dominant purpose of preparing for litigation. Accordingly, I find that only pages 4, 5 and 6 of record 51 qualify for legal professional privilege and that the remaining pages should be released. For the sake of clarity, I find also that pages 1, 2 and 3 of record 58 which are identical to the legal advice parts of record 51 also qualify for legal professional privilege and should not be released.

In her preliminary views, my Investigator put it to the Department that record 88 should be released with the exception of paragraph 4 and that record 136 should be released with the exception of paragraph 2, both of which disclose legal advice. The Department in its response has accepted this view and released those parts of the records which do not contain legal advice. I agree that the remaining parts would qualify for legal professional privilege i.e. paragraph 4 of record 88 and paragraph 2 of record 136.

Records 99, 101, 105 and 130 are all communications between a client and his/her legal adviser for the purposes of obtaining and/or giving legal advice or synopses of what is contained in the correspondence with the Attorney General's Office. Record 164 can be described as a communication between a legal adviser and a third party, the dominant purpose of which is the preparation for contemplated litigation. I am satisfied that these five records qualify for legal professional privilege.

With regard to Record 167, the Department has claimed that the last sentence in paragraph 2 on the second page qualifies for legal professional privilege. I am satisfied that this is the case in that it discloses confidential legal advice given to the Department and find that it qualifies for legal professional privilege.

The Public Interest

As mentioned above, I consider that there would have to be exceptional public interest factors at play before legal professional privilege could be set aside. The Appellant agues that the importance of the water pollution risk and the alleged corruption in relation to the illegal dumping situation is sufficient to set aside the privilege and confidentiality claimed. I have considered whether the factors in favour of disclosing the Department's legal advice are of sufficient weight to set aside the normal principles designed to protect the confidentiality of legal exchanges between the client (the Department) and its lawyers. I recognise that there is a public interest in government being open and transparent in relation to environmental matters. There is also a public interest in individual members of the public being able to understand the basis for decision making involving matters that affect the environment and involve alleged breaches of environmental law. However, against this I must weigh the strong and long established public interest in upholding legal professional privilege as interpreted by the Courts. While it would be open to the Department to waive the privilege claimed over the information containing its legal advice, it has chosen not to do so as is its right under the law. Public authorities need to be reasonably certain that they can seek and obtain full and frank legal advice in confidence. In this case, while I cannot, of course, describe in any detail the advice sought or given, I can say that it is concerned primarily with the legal powers of the Minister in relation to investigation of the issues in Wicklow. I do not consider that the public interest factors here, though considerable, are of sufficient strength to justify the setting aside of legal professional privilege and therefore my findings in relation to records and parts of records 50, 51, 58, 88, 99, 101, 105, 130, 136, 164 and 167 are that the information in them is properly exempt from disclosure in accordance with Article 8(a)(iv) of the Regulations.

Correspondence with European Commission
Records 48, 52, 61, 62, 63, 64, 65, 66, 67 and 68

The Department has refused access to these records on the basis of 9(1)(b) of the Regulations. The Department states that the information is legally privileged and that the privilege exists until such time as the proceedings are complete. According to the Department, the proceedings are not yet closed. It has not outlined the public interest factors considered by it in refusing access.

Records 48, 52, 61, 62, 63, 64, 65, 66, 67 & 68 are described as correspondence relating to the Department's response to the European Commission following a case taken in the European Court of Justice against Ireland in which judgement was given in April 2005 (Case C-494/01). The records include updates to the Department from the Council in relation to County Wicklow waste disposal sites, internal memoranda relating to arrangements for formulating responses to the complaints and opinions received from the Commission and a 2003 response letter to the Commission about various sites throughout the country.

As outlined above, in order for legal professional privilege to apply, the record must be a confidential communication between a client and his/her legal adviser or 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 or pending litigation.

My Investigator asked the Department to provide a chronology of the events relating the Court case for which the judgement was given in April 2005 (ECJ reference C-494/01 was the case cited in the Department's decision to refuse these records ). She did this in order that my Office might consider whether the information in the records qualified under either or both limbs of the legal professional privilege rule.

Having carefully examined the information provided and drawing on other relevant research, my Investigator established the position on Case C-494/01. Correspondence was ongoing from 1997 to 2001 as a result of complaints that Ireland had violated the European Communities' Waste Framework Directive. Letters of formal notice and reasoned opinions issued from the European Commission (the Commission). On 20 December 2001, the Commission initiated an action against Ireland before the European Court of Justice (ECJ). The case was heard on 6 July 2004. An opinion of the Advocate General was issued on 23 September 2004 and judgment against Ireland was given on 26 April 2005. The judgment refers to 12 complaints, one of which covers an allegedly unregulated private undertaking at Bray, Co Wicklow. As, in the view of the Commission, Ireland failed to comply with this judgment, a letter of formal notice was issued under Article 228 of the Treaty of the European Union on 27 June 2007.

Separately, in a press release dated 13 July 2004, the Commission announced that it was pursuing infringement proceedings against Ireland in relation to unauthorised waste activities at Granny Ferry, Co Kilkenny, Tinnapark, Co Wicklow, Murphy's Rock, Blackpool and Ardistan, Co. Carlow. Therefore, the proceedings which related to Tinnapark, Co Wicklow commenced after the ECJ Case C-494/01 was heard on 6 July 2004. I can find no mention of the Bray case in the 10 records under review and, indeed, it would appear from the ECJ judgment that the complaint involved Bray Urban District Council and domestic refuse collection as opposed to ''illegal dumping".

A detailed examination of these 10 records shows that the content relates to the issues/locations mentioned in the July 2004 press release and not to the locations or complaints dealt with in ECJ Case C-494/01. Given that none of these records relate directly to the ECJ case C494/01 in which judgment has been given and I can find no evidence of further proceedings before the Court (ECJ) relating to the later infringement proceedings (nor has the Department advanced any evidence of such proceedings), I cannot see how legal professional privilege can be said to apply to any of these 10 records in the absence of evidence that they have been prepared with dominant purpose of preparation for contemplated litigation identified by the Department as Case C-494/01. Neither can I find in the records any confidential legal advice sought by or received by the Department from professional legal advisers which would be disclosed if this information was to be released.

Even if the Department was to claim that the 10 records relate in some way to the earlier proceedings, I would have to be satisfied that they qualified for legal professional privilege if access to them is to be refused. I have had regard to the judgment in Silver Hill Duckling Limited, Ronald Stuart Steele and Elizabeth Patricia Steele v The Minister for Agriculture, Ireland and the Attorney General [1987 I.R 289] in which O'Hanlon J. held that the defendants in that case were entitled to claim privilege in respect of internal documents prepared in connection with the claim, and for the primary purpose of dealing with the claim, which was being formulated on behalf of the plaintiffs. I have also had regard to the judgment in the case of Blaise Gallagher (A Minor) suing by his mother and next friend, Avril Gallagher v Joseph Stanley and the National Maternity Hospital ([ 1998] 2 I.R. 267) in which it was held that the test in relation to privilege was whether the dominant purpose for which the documents came into being was in apprehension or anticipation of litigation.

I accept that the officials involved may have felt there was some chance that some or all of the cases might end up in the European Court of Justice at some stage but, as I have pointed out above, case the ECJ case C494/01 did not involve the Co Wicklow complaint the subject of these records. On the basis of this and on the contents of the records, I am not satisfied that preparation for litigation was the dominant purpose in their creation. In my view, the dominant purpose of their creation was either as briefing material (setting out the background to the various cases and liaising with the Council as to progress) or as responses to the correspondence sent by the Commission after it had received complaints. The content does not disclose any actual preparation for anticipated litigation nor has the Department argued that these records formed part of briefing material forwarded to its legal advisers in preparation for litigation. While the latter is not necessarily a prerequisite in order for legal professional privilege to apply, it can support a position that the material was prepared with the dominant purpose of preparing for apprehended litigation.

It could be argued that litigation can only be said to be contemplated in circumstances where the case has been referred to the ECJ and not when letters of formal notice or reasoned opinions are issued by the Commission. Presumably, complaints, formal notices and reasoned opinions do not inevitably lead to litigation. I do not consider it tenable that all information generated in and around responses to the Commission in the context of complaints made to it could be held to have been generated in preparation for litigation before the ECJ. Any such cases would have to be determined in each instance on the basis of the content of the records, the circumstances of their creation and a consideration of what other (if any) purposes might have been served by their creation. Given the circumstances of this case as discussed above , it is not necessary for me to go further than to find that the records at issue do not qualify for exception under either limb of the legal professional privilege rule. Nor have I sufficient evidence from the Department on which to find that their release would adversely affect the course of justice. Therefore, I find that neither Article 8(a)(iv) nor Article 9(1)(b) apply in the circumstances of this case and that records 48, 52, 61, 62, 63, 64, 65, 66, 67 and 68 should be released insofar as they are within the scope of the request. In this regard, I have no jurisdiction to direct the release of information relating to sites other than the Co Wicklow cases, it is matter for the Department as to whether it redacts from the copies the material about the other sites.

Confidentiality of Proceedings of Public Bodies - Record 87 and parts records of 147, 161, 165

This group of records are from the files of the Local Government Policy Section and access was refused by the Department on the basis of Article 8(a)(iv) of the Regulations on the basis that they relate to the confidentiality of the proceedings of public authorities. The Department agreed with my Investigator's view that it should release parts of records 147, 161 and 165 with the exception of some paragraphs dealing with allegations against Council officials. It says that these paragraphs contain information supplied in confidence by a third party who was/is under no obligation to supply such information. I take this to be a possible reference to Article 8(a)(ii) although the Department makes no specific mention of that exception.

The Department has not claimed that any particular Irish or Community law protects the confidentiality of its ''proceedings" in this instance. 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.'

The records can be described as memoranda or briefing notes synopsising the position in relation to various waste management issues in Co Wicklow. The refused parts in records 147, 161 and 165 repeat similar allegations from the same person in relation to unnamed Council officials and a named individual who apparently had a contract for services with the Council. I note that the person involved does not appear to have supplied the information at issue directly to the Department - the memoranda merely report that the allegations were made. Record 87 identifies another individual - a landowner who made allegations against unidentified Council officials in relation to a waste permit issue. In that case, it appears that the landowner supplied the information. The individual is not recorded as having sought or been given any assurances that what he said was confidential and it seems to me that he gave the information with a view to having his claims investigated.

I am aware from media reports, including coverage of High Court proceedings involving the Council and of Council meetings at which these allegations were discussed, that the identities of the persons named in these records and the nature of their allegations are already in the public domain. The Department has not provided sufficient justification for its position to enable me to make a finding that the providers of the information in these records did so in circumstances where they had an expectation of confidence or in circumstances imposing an obligation of confidence. I am not satisfied that, in the circumstances of this case, the information has the necessary quality of confidence. Therefore, the Department's assertion that the providers of the information were under no obligation to supply the information is of no particular significance here since adverse affect on the interests of the persons who supplied the information has not been shown. If there has been any adverse effect on the persons identified, this would have come from the fact that their involvement is already in the public domain as opposed to being disclosed as a consequence of the granting of this request.

Furthermore, in dealing with these records, I am of the view that the provisions of Article 10(3), which provides for a restrictive interpretation of the grounds for refusal to be applied, are relevant.

Accordingly, I find that the making available of the information described above would not adversely affect the confidentiality of the proceedings of public authorities where such confidentiality is otherwise protected by law nor would it adversely affect the interests of any persons who voluntarily and without being under a legal obligation to do so supplied the information requested, the exceptions at Articles 8(a)(ii) and 8(a)(iv) do not apply to this group of records.

Local Government Audit Service File

As outlined above, this file is missing and the only part of it available to me is a draft report prepared by the LGAS which was held in electronic format. Having examined the contents of the draft report, it appears to me to be largely a factual statement of events that occurred in relation to the Ballybeg waste licence issue.

Is the draft report Environmental Information?

Before I examine the Department's claims for exception in relation to this record, I must deal with a contention made by its Director of Audit that the draft report would not come within the scope of the Regulations as the matter reviewed was in relation to an 'administrative action' within the Council. The Department says that the matter being investigated related to the issue of a Waste Permit by the Council and goes on to make what, in circumstances where it is not in dispute that the LSAS carried out an investigation, is a somewhat bizarre claim that "The Local Government Audit has no role in examining environmental matters".

I should not have to remind the Department of the Environmental of the definition of ''environmental information'' set out in the Directive and in the 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) 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 ... 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);".

There can be no doubt but that maters relating to the issue of a waste licence come within article 3(c) and probably also fall within other elements of the definition including article 3(f). In any case, I consider that the matters - including investigation of allegations about non-compliance with licensing measures - are sufficiently connected to factors and measures which affect the environment to be classed as environmental information. Whether the LGAS has any role in examining environmental matters or not, the fact is that it purported to conduct an investigation into matters concerning measures to protect the environment, (namely the regulation of waste disposal in a specific case) so that the records thus created comprise environmental information for the purposes of the Regulations and the Directive.

The LGAS has claimed on behalf of the Department that its report is exempt from release under Articles 8(a)(iv) and 9(2)(c) of the Regulations. In claiming exception under Article 8(a)(iv), the LGAS has contended that the reference to the FOI Act, 1997 to 2003 invokes Section 21(1)(a) of that Act which provides that a request may be refused if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof"

According to the LGAS, this provision has been ''successfully" invoked in the past in protecting the independence of the Service. I am not sure as to what tests of success the Department is referring in this regard and I have been unable to locate any record of a finding of my Office affirming a decision of a public body to withhold the records of the LGAS under the FOI Acts. In any case, a "blanket exemption " without particular reference to the content of the records and the harm or prejudice which would flow from release would not be acceptable under the FOI Acts nor under the Regulations and Directive in this case.

I refer to the Supreme Court judgment in Sheedy v Information Commissioner [2005] IESC 35 in which Mr. Justice Kearns stated, in relation to section 21(1) that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s.34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] ... could never constitute sufficient evidence in this regard..." . Of course, apart from the harm test, both statutory schemes also provide for a public interest override even where the exemption is held to apply. In fact, previous decisions of the Information Commissioner have found that Section 21(1)(a) of the FOI Act did not apply to internal audit type reports and directed the release of these reports (see for example Cases 030693 and 040264 on www.oic.ie). On the other hand, there have been cases where the public body, including the Revenue Commissioners, has succeeded in satisfying my Office that the effectiveness of its audit functions would be prejudiced by release of certain audit records and that the public interest in granting the request was not outweighed by the public interest in safeguarding the audit process.

In a submission dated 27 February 2009, the LGAS also argues that section 20(1) of the FOI Act would apply to cause the records to have confidentiality protected by law because the draft report is part of the deliberative process. In this regard, the LGAS appears to have taken no account of the provisions in section 20(2) of the FOI Act which exclude "from this exemption factual information and a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to its functions generally or a particular function of the body. Neither has any consideration been given to the public interest test at section 20(3) of the FOI Act. Even if I was satisfied that the content of the draft report contains matter related to the deliberative process, I would have to find that is content is not exempt because it is either factual and/or it comprises a report of the performance of the Council in relation to one of its functions. In addition, it seems to me that there is a strong public interest in release of this draft report - a matter which I do not have to make findings on here unless the exception is found to apply.

Clearly, the content of the records and any arguments put forward by the Department as to the type and extent of prejudice to its audit which would flow from release of the draft report are relevant considerations in relation to the claim that Article 8 (a)(iv) applies.

In arguing that article 8(a)(iv) protects the draft report from release, the LGAS refers me to provisions of the Local Government Act 2001 in relation to the independence of the audit function. Clearly, such independence is vital to the proper functioning of the audit service. However, it does not follow that release of a draft report of the type at issue here which , in my opinion, discloses nothing about the independence of the audit service or about its methodology in carrying out value for money audits or other of its investigative functions would prejudice or interfere in any tangible way with the fundamental principle of ''auditor independence". Similarly, the Department has not convinced me that the principle of the auditor having his or her own discretion in relation to how an audit is carried out would be undermined in any way by allowing access to the information in this particular draft report. In my view, the Department has failed to adduce any substantial arguments which would lead me to conclude that the serious adverse affect on the confidentiality of the proceedings of public authorities necessary to apply the exception would result from release of the draft report.

The Department has also claimed that the draft LGAS report is exempt from release under Article 9(2)(c) of the Regulations as it is still in the course of completion or is an unfinished document. Given that the draft report was prepared in 2005 and a letter was sent to the Minister dated 21 December 2005 (Record 69 - released) setting out the opinion of the LGAS in the matter, I cannot see how this draft report can be considered to be in the course of completion, more than three years later. There is no suggestion of any further activity on the part of the LGAS in this matter since 2005. I find that the Article 9(2)(c) exception does not apply here.

The Public Interest

As I have found that neither article 8 or 9 apply in relating to the draft report, 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 general comments on the public interest. There is a strong public interest in the public being aware of how allegations about waste management, the administration and regulation of permits and the overall issue of pollution resulting from unauthorised dumping of waster are handled. I can find little in the Department's submissions which would support or outweigh this public interest in release. In the case of this draft report, I would add that it seems to me that the fact that the main LGAS file has, apparently disappeared without explanation, strengthens the public interest in as much information as possible about this environmental controversy being released so that the public is aware of measures taken to investigate the allegations made.

Decision

In accordance with article 12(5) of the Regulations, I have reviewed the decision of the Department in this case and I find, for the reasons detailed above that it was not justified in its decision to refuse the request except in relation to those parts of the information which I have found to qualify for legal professional privilege. I find that records 50, 99, 101, 105, 130 and 164 and parts of records 51, 58, 88, 136 and 167 qualify for legal professional privilege and that, in accordance with Article 10, the public interest in granting that part of the request did not outweigh the interest served by refusing it.

I hereby vary the decision of the Department and require it to make the environmental information available to the Appellant, with the exception of those records detailed above. For the sake of clarity, the position as a result of this decision is set out in the attached appendix.

Appeal to the High Court

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
27 October 2009

 

Appendix to Decision CEI/08/0012

Record No. Position as a result of this decision
48 Release in full - no exception found to apply
50 Not for Release - LPP - 8(a)(iv)
51 Release except part found to qualify as LPP - 8(a)(iv)
52 Release in full - no exception found to apply
58 Release except part found to qualify as LPP - 8(a)(iv)
61 Release in full - no exception found to apply
62 Release in full - no exception found to apply
63 Release in full - no exception found to apply
64 Release in full - no exception found to apply
65 Release in full - no exception found to apply
66 Release in full - no exception found to apply
67 Release in full - no exception found to apply
68 Release in full - no exception found to apply
87 Release in full - no exception found to apply
88 Release except part found to qualify as LPP - 8(a)(iv)
99 Not for Release - LPP - 8(a)(iv)
101 Not for Release - LPP - 8(a)(iv)
105 Not for Release - LPP - 8(a)(iv)
130 Not for Release - LPP - 8(a)(iv)
136 Release except part found to qualify as LPP - 8(a)(iv)
147 Release in full - no exception found to apply
161 Release in full - no exception found to apply
164 Not for Release - LPP - 8(a)(iv)
165 Release in full - no exception found to apply
167 Release except part found to qualify as LPP - 8(a)(iv)
LGAS Report Release in full - no exception found to apply