Case number: CEI/11/0001

Appeal to the Commissioner for Environmental Information

Case CEI/11/0001

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

Appellant: Mr. Gavin Sheridan

Public Authority: Central Bank of Ireland (the Bank)

Issue: Whether the Bank was justified in refusing access to certain items of information relating to mileage claims on the ground that the information concerned is not environmental information within the meaning of the Access to Information on the Environment (AIE) Regulations

Summary of Commissioner's Decision:

In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the Bank and found that it was justified in refusing access to the information concerned on the ground that it is not environmental information within the meaning of the Regulations. She affirmed the decision of the Bank accordingly.

Background

The appellant made a request to the Bank, dated 30 November 2010, seeking access under the AIE Regulations to the following information:

  • a datadump (export/copy) of all flight expenditure as recorded by the Central Bank from January 2005 to October 2010 inclusive; and
  • a datadump (export/copy) of all mileage claims as recorded by the Central Bank from January 2005 to October 2010 inclusive.

Following contacts with this Office, the appellant agreed on 13 January 2012 to confine his request to a datadump (export/copy) of all mileage claims as recorded by the Central Bank from January 2010 to October 2010 (without prejudice to future requests for older data).

The Bank refused the appellant's request on the basis that the requested information was not "environmental information" within the meaning of the AIE Regulations. On 10 January 2011, the appellant appealed to my Office against the Bank's decision.

The Bank made a submission dated 21 February 2012 in support of its decision. The Bank also initially provided a partial travel spreadsheet for 2010 for the purposes of my review, but it maintained its position that the information therein did not fall within the ambit of the AIE Regulations. Subsequently, however, the Bank agreed to provide my Office with a complete travel spreadsheet for 2010 on a compact disc.

After seeking clarification regarding certain items of information in the complete spreadsheet, my Investigator took the view that, in the context of this case, the information appearing in the columns under the following headings was environmental information: Mode of Transport, KM per trip, Date Outward, and Date Return. The Bank ultimately accepted my Investigator's view of the matter and released the relevant information to the appellant on 24 February 2012.

The appellant maintains that the entirety of the database of travel information is environmental information and thus subject to release under the AIE Regulations. He has made submissions in support of his position on 6 January 2012 and 2 March 2012, respectively. In the circumstances, and having had regard to the submissions of both parties in this case, I have decided to bring the matter to conclusion by way of a formal, binding decision.

Scope of Review

Following her examination of the complete travel spreadsheet for 2010, my Investigator informed the appellant that the headings include: Destination; Date Outward; Date Return; Mode of Transport; Purpose of Journey; Details; Motor Expenses Y/N; KM per Trip; Mileage €; Expenses €; Final Cost of Travel €. In his submission dated 2 March 2012, the appellant notes that my Investigator was "silent regarding the remainder of the information on the disc". He states: "It is my expectation the the entirety of the information be considered by the Commissioner in making her determination and not just a subset of it." However, as noted above, the appellant agreed on 13 January 2012 to confine his request to mileage claims. My Investigator confirmed the terms of the revised request in writing. The other information in the complete spreadsheet relates to such matters as flights, hotels, subsistence, and other expenses that are not related to mileage claims and therefore do not fall within the scope of the appellant's revised request.

The issue before me is whether the information in the spreadsheet relating to mileage claims, apart from the information which has already been released by the Bank, is environmental information within the meaning of the AIE Regulations.

Definition of "environmental information"

The AIE Regulations are based on Directive 2003/4/EC. In line with Article 2(1) of the Directive, Article 3(1) of the AIE 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, such as air and atmosphere, water, soil, land, landscape and natural sites . . . and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost benefit and other economic analyses and assumptions used 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)".

The Bank's Position

The basis for the appellant's request, as stated originally to the Bank and in his internal review application, is that the information sought relates to emissions into the environment. He contended that the items of information in the database requested are factors affecting or likely to affect the elements of the environment and also measures affecting or likely to affect the elements and factors in paragraphs (a) and (b) of the environmental information definition.

In responding to the appellant's contention, the Bank has emphasised that the request actually relates to details of expenditures. The Bank states: "Such expenditures are not environmental information as they contain no data about emissions generated in the course of . . . journeys or other environmental factors. Instead, this data are part of the financial records of the Central Bank."

The Appellant's Position

During the course of the review, my Investigator had regard to the judgment of the European Court of Justice (ECJ) in Glawischnig v. Bundesminister für soziale Sicherheit und Generationen, Case-316/01 (12 June 2003), which is discussed below. She accepted that travel may involve environmental factors such as emissions. She therefore considered that official travel, especially by car or plane, may be an activity within the meaning of paragraph (c) of the environmental information definition in that it affects or is likely to affect the elements or factors referred to in paragraphs (a) and (b) of the definition. However, she observed that activities only come within the scope of the definition by virtue of their direct or indirect link to an impact on the elements of the environment. In the circumstances, she considered that information on an activity must reflect the link to the environmental impact of the activity in order to fall within the ambit of paragraph (c).

In his response to my Investigator's view, the appellant says that he agrees that "Glawischnig is precedent" in the context of the environmental information definition. He therefore accepts that the definition "excludes information with only a minimal connection to the environment". However, he considers that "Glawischnig does not provide any assistance on how to determine whether the connection with the factors or elements of the environment is minimal or not since in that case the information requested [relating to food labelling under a statutory scheme] was clearly not included in the relevant category of information which was limited at that time to measures to protect the environment". He also considers that my Investigator has "not set out an objective basis or framework for determining the link between a piece of information and the environment so that this link is more than minimal and so should be considered as environmental information". He refers to the "framework for this analysis" that he proposed in his previous submission.

In his previous submission, dated 6 January 2012, the appellant suggested that, where activities affect environmental factors and/or elements, information on the activities is included in the definition of environmental information "unless there is a minimal connection between the information and those activities". Thus, he stated: "Environmental Information may be on an activity that affects a factor or element and not necessarily on the factor or element that is affected by that activity (for example a factor may be emissions generated by the activity of air transport but it is the activity of air transport not the factor that is affected by it that is relevant and as such any information on this activity is Environmental Information)." By this reasoning, then, expenditure on travel activities affecting environmental factors such as emissions and noise is environmental information even if "the expenditure itself is not directly linked to an environmental factor". The appellants added: "It is information on the activity and not on the factor itself that is requested here and expenditure forms part of such information and should be released."

In his most recent submission, the appellant has developed his proposed framework for analysis based on the decisions of the UK Information Tribunal in Nottinghamshire County Council v. Information Commissioner EA/2010/0142 (29 Dec. 2010) and Staffordshire County Council v. Information Commissioner EA/2010/0015 (22 Nov. 2010). He states:

"In the Nottinghamshire case the financial information requested was not considered to be environmental information since it had no bearing on the environment and was particular to a certain contract in terms of pricing and other factors. On the other hand in the Information Tribunal decision EA/2010/0015 Staffordshire County Council the tribunal found that sales figures for minerals were indications of what had been extracted from the environment in a mining operation and that because this activity affected or was likely to affect the environment the sales figures were environmental information.

In my view the framework set out above is the correct way to analyse my request to the [Bank]. One must look at the degree of connection between a piece of information and environmental issues by examining the relationship between the information sought, the activity it relates to and environmental issues by determining whether or not changes in the information sought are reflected in, or are indicative of changes in, the activity in question and environmental issues."

The appellant argues that, applying his proposed framework, all of the items of information at issue, including purpose of journey and the associated expenses, have a connection with the environment and therefore qualify as environmental information.

Analysis and Findings

Obligations and Limits of AIE

The AIE regime imposes significant obligations on public authorities. The expectation in the scheme of the Directive and the Regulations is that requests for environmental information will generally be granted. In order to facilitate access to environmental information, public authorities are required under the Regulations to “make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means”. The Regulations, as recently amended by the European Communities (Access to Information on the Environment) (Amendment) Regulations 2011 (S.I. No. 662 of 2011), now also require public authorities to “ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable”. In addition, public authorities must “maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found”.

Moreover, under AIE, no provision is made for upfront fees to apply for making a request or for applying for an internal review of a decision to refuse a request. Although the Regulations set out certain mandatory and discretionary grounds for refusal, requests for environmental information cannot, in most cases, be refused where the request relates to emissions into the environment. All requests are subject to consideration of the public interest under Article 10(3) of the Regulations. Moreover, Article 10(4) provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest.

However, as the ECJ recently observed in Flachglas Torgau GmbH v. Federal Republic of Germany, Case C-204/09 (14 Feb. 2012), "the right of access guaranteed by Directive 2003/4 only applies to the extent that the information requested satisfies the requirements for public access laid down by that directive, which requires inter alia that the information is 'environmental information' within the meaning of Article 2(1) of the directive". In other words, the AIE regime only applies with respect to "environmental information" as that term is defined and therefore there are limits to the scope of the AIE regime. I recognised that such limits exist in Case CEI/09/0015, Pat Swords v. RTÉ (10 May 2010), when I found that the link between the information requested (names, qualifications and training of RTÉ staff reporting on or researching environmental issues and industrial development matters) and the categories of the Article 3(1) definition was not sufficiently strong to bring the information within the definition.

Moreover, in Glawischnig, the ECJ held, in relation to the previous AIE Directive, that the right of access under the AIE regime only applies to information that falls within one of the relevant categories. The Court explained:

"The Community legislature's intention was to make the concept of 'information relating to the environment' defined in Article 2(a) of Directive 90/313 a broad one, and it avoided giving that concept a definition which could have had the effect of excluding from the scope of that directive any of the activities engaged in by the public authorities (see Mecklenburg, paragraphs 19 and 20).

Directive 90/313 is not intended, however, to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned in Article 2(a). To be covered by the right of access it establishes, such information must fall within one or more of the three categories set out in that provision."

The previous Directive provided that "information relating to the environment shall mean any available information . . . on the state of water, air, soil, fauna, land and natural sites, and on activities . . . or measures adversely affecting, or likely so to affect these, and on activities or measures designed to protect these, including administrative measures and environmental management programmes". As the Court observed, the current Directive "contains a definition of environmental information which is wider and more detailed than that in Directive 90/313". However, while the categories in the current Directive have certainly been expanded and broadened, the phrase "information . . . on" is still used, as it was in the previous Directive. Therefore, I would consider that the Court's interpretive approach in Glawischnig still applies, i.e. that it is still necessary for information to fall within one of the current six categories set out in the definition.

The Appellant's proposed framework

The appellant purports to agree that the ruling in Glawischnig applies in determining the scope of the environmental information definition. However, he seems to suggest that a "minimal" connection should be read as "no connection" to any matter in one of the six categories in order for information to be excluded from the remit of the AIE regime. My understanding of the appellant's proposed framework is that, if it is accepted that an activity such as travel by car affects or is likely to affect the environmental elements and factors referred to in categories (a) and (b), then any information relating to travel by car is environmental information unless it is accepted that it has "no connection with the environment". His view of a connection with the environment, however, is not limited to information which reflects the environmental impact of the travel, but rather extends to encompass such matters as information that would explain the purpose of the trip, regardless of whether the purpose itself was connected to environmental elements or factors, as well as the monetary expenses associated with the travel. While I see a connection between such matters and the activity of travel, I do not see the necessary connection between such matters and the environmental impact or effect of the travel. In my view, the appellant's suggested framework is out of line with the guidance provided by the ECJ in Glawischnig. In the circumstances, I do not consider it practicable or otherwise appropriate to adopt the analytical framework suggested by the appellant.

In support of his position, the appellant relies primarily on the following passage in the decision of the UK Information Tribunal in the Nottinghamshire case:

"The litmus test is that this information - and the key financial indicators within it - can be adjusted over a broad commercial range of negotiation in terms of the confidential information without having any effect on environmental issues."

I acknowledge that, in appropriate circumstances, I may have regard to the decisions of the UK Information Commissioner and Information Tribunal (now more accurately referred to as the First-tier Tribunal (General Regulatory Chamber)). The reasoning employed in such decisions can help to inform my thinking in determining new issues. However, the decisions of administrative bodies in foreign jurisdictions, including the UK, have no precedent value in Ireland.

In any event, I do not agree that the cases referred to by the appellant support the approach he proposes. The Tribunal did not purport to set a threshold over which any information with any connection with the environment is environmental information, as the appellant seems to suggest. On the contrary, the information at issue in the Nottinghamshire case related to a contract, i.e. a measure, to develop a waste management facility. More specifically, the disputed information related to an option to lease a site upon which it was proposed to build and operate an incinerator. Nevertheless, notwithstanding the obvious connection that the information had with a "measure" within paragraph (c) of the definition, the Tribunal found that the information had no bearing on the environment and was not itself environmental information. In reaching its conclusion, the Tribunal had regard to Glawischnig in observing that "simply because information has a slight or tangential association with 'the state of the elements of the environment . . . ' that mere or tangential association will not necessarily bring it within the scope of EIR [Environmental Information Regulations]." Thus, under the Tribunal's "litmus test", it is not sufficient for information to have a connection with a measure or activity in category (c); rather, the information concerned must have a direct relationship with, or "bearing on", the relevant environmental factors or elements in order to qualify as environmental information. As in the Staffordshire case, the information must be indicative of the environmental impact of the activity to which it relates.

Sufficient link to environmental impact is required

The purpose of the AIE regime is reflected in Recital (1) of the Directive (see ECJ Case C-71/10): "Increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually to a better environment." In other words, AIE is about promoting openness and transparency in relation to environmental matters, or, as some commentators put it, it is about equipping the public to act as "environmental watchdogs".

(See, e.g., Áine Ryall, "Access to Environmental Information in Ireland: Implementation Challenges", Journal of Environmental Law Advance Access, 19 Jan. 2011). I consider it vital to the integrity of the AIE regime that its focus remains on environmental matters; as a general matter, it would not be appropriate to extend AIE to information that is more readily understood to be about the general business functions of public authorities rather than about the environment.

In short, following the guidance provided by the ECJ in Glawischnig, I find that, in order for information to qualify as "environmental information" for purposes of the AIE Regulations, it is necessary for the information to fall within one of the six categories set out in the definition in Article 3(1). As my Investigator noted in her preliminary views to the appellant, activities only come within the scope of the definition under paragraph (c) insofar as they affect or are likely to affect the elements of the environment and factors which in turn affect or are likely to affect the elements of the environment. In other words, activities only come within the scope of the definition by virtue of their direct or indirect link to an impact on the elements of the environment. In the circumstances, I find that information on an activity must, at a minimum, reflect the link to the environmental impact of the activity in order to fall within the ambit of paragraph (c); it is not sufficient for information simply to be related to the activity. To put it another way, there must be a sufficient connection between the information concerned and an aspect of the activity that has an effect on the environmental elements and factors referred to in paragraphs (a) and (b) of the definition.

Travel by car?

I must, however, question whether the definition of environmental information was intended to encompass the activities of individual staff members of public authorities as compared to higher level measures and activities such policies, legislation, plans, programmes, and environmental agreements, i.e. the examples given in paragraph (c). The Directive was adopted by the European Union (EU) in order to give effect to one part of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the "Aarhus Convention". The Aarhus Convention: An Implementation Guide [ECE/CEP/72] (the Aarhus Guide) identifies the following as examples of "activities or measures": "administrative measures, environmental agreements, policies, legislation, plans and programmes". In addition, the Guidance Notes relating to the implementation of the Regulations that have been published by the Department of the Environment, Heritage and Local Government (the Department) describe paragraph (c) of the environmental information definition as relating to "items such as administrative measures, plans and programmes". None of these examples suggests that the activities of individual staff members were meant to be included. However, the ECJ has recently clarified that, while it is appropriate to have regard to the Implementation Guide, where relevant, the observations in the Guide have no binding force. (Solvay v Region wallonne, Case-182/10 (16 Feb. 2012)). Similarly, the Department's Guidance Notes do not purport to be a legal interpretation of the Regulations.

Given the structure of paragraph (c) of the definition, where the term "and activities" follows the examples given for "measures", I do not see a sufficient basis for excluding the activities of individual staff members of public authorities where those activities affect or are likely to affect the elements and factors referred to in paragraphs (a) and (b) of the definition. Arguably, the term "activities" was meant to be interpreted consistently with policies, legislation, plans, programmes, and environmental agreements. However, the ECJ indicated in Mecklenburg v. Pinneberg, C-321/96 (17 June 1998) that the examples in the definition are not to be given a limiting effect. Therefore, with some reservation, I accept that official travel by car is an activity within ambit of paragraph (c) of the definition.

Remaining items of information at issue

Of the remaining items of information at issue, those with an arguable connection to the environmental elements and factors referred to in paragraphs (a) and (b) of the definition are, in my view, destination, motor expenses, and mileage amounts. Destination is an indicator of distance and therefore could be viewed as reflecting the degree of the impact that the travel may have had on the environment. However, in this case, the distance is far more accurately reflected by the precise amount of kilometres per trip that has already been made available to the appellant in the "KM per trip" column of the spreadsheet. To look at it another way, i.e. in light of the litmus test set out in the Nottinghamshire case, the destination can change without there necessarily being any change in the actual distance travelled or in the environmental factors, such as noise and emissions, associated with the travel. In the circumstances, in the context of these particular mileage claims, I do not accept that the link between destination on the one hand and environmental elements and factors on the other is sufficient to bring the information in the destination column of the spreadsheet within the remit of the AIE Regulations. Rather, in this case, destination is information about the business functions of the Bank.

Motor expenses simply reflect whether expenses were incurred for using a car; unlike the distance of the trip, as revealed by "KM per trip", they do not reflect the environmental impact of the motor usage. In other words, the motor expenses column of information is about expenses, not environmental elements and factors. Even applying the litmus test set out in the Nottinghamshire case, expenses information is not environmental, because the expenses can be adjusted, by a change in rates or even a decision not to claim expenses, without there being any change on the effect on the environment. Official travel is meant to be undertaken in order to meet the business needs of the public body or authority concerned and would presumably occur regardless of the expenses that an individual staff member is permitted or chooses to claim back in return.

The mileage amount, in turn, is the monetary amount paid in respect of the kilometres travelled. The appellant states: "The mileage costs reflect the amount of fuel consumed as well as wear and tear on the vehicle and therefore a variation in mileage costs also reflects variations in environmental issues such emission, fuel consumption and so on." In fact, however, the amounts are calculated based on the Civil Service/Revenue rates, which differ depending on the engine capacity of the vehicle concerned. More specifically, different rates are paid depending on whether the engine capacity is up to 1,200cc, between 1,200cc to 1,500cc, or 1,501 and over; thus, the mileage amount does not reflect the actual amount of fuel consumed. I also note that fuel consumption is dependent on many variables apart from engine capacity, including the body type and aerodynamics of the vehicle concerned, fuel variations, and driving style or habits (i.e. "human factors"). Again, then, the mileage rates or amounts could be adjusted without there being any change in the effect on the environment. I do not accept that the connection between the mileage amounts shown in the spreadsheet on the one hand and environmental factors and elements on the other is sufficiently strong to turn what is, in essence, a business expense into "environmental information".

Conclusion

I conclude that the remaining items of information at issue do not have a sufficient connection with the environmental impact of the activity of travel by car to meet the definition of "environmental information" under the AIE Regulations. I find in the circumstances that the Bank's decision to refuse the appellant's request for information relating to mileage claims, apart from the information which has already been released, was justified and should be affirmed.

Decision

In accordance with Article 12(5) of the AIE Regulations, I have reviewed the decision of the Bank in this case. I find that the Bank was justified in refusing the appellant's request for the remaining items of information at issue on the ground that the information concerned is not "environmental information" within the meaning of the Regulations. I affirm the Bank's decision accordingly.

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 was given to the person bringing the appeal.

Emily O'Reilly
Commissioner for Environmental Information
26 March 2012