Case number: CEI/12/0004
Issue: Whether the Council was justified in refusing access to certain items of information relating to Greyhound Waste and the transfer of the waste collection service on the ground that the information concerned is not environmental information within the meaning of the AIE Regulations
Summary of Commissioner's Decision:
In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the Council and found that it was justified in part in refusing access to the information concerned on the ground that it is not environmental information within the meaning of the Regulations. He found that the Council was not justified in refusing access to item 2 of the request on the ground that it is not environmental information within the meaning of the Regulations and that the Council must therefore process item 2 of the appellant's request in accordance with the Regulations. He varied the decision of the Council accordingly.
In a request made to the Council dated 22 February 2012, the appellant sought access under the AIE Regulations to the following items of information:
In a decision dated 22 March 2012, the Council refused the request on the basis that it was not a request for "environmental information" within the meaning of the AIE Directive upon which the Regulations are based. The Council added that, if the request were considered to be valid, access would be refused because the information is "commercially sensitive". In its internal review decision dated 20 April 2012, the Council affirmed its original decision to refuse the request. The Council gave the following reason for its decision: "The documents and details sought by you relate to a commercial agreement between Dublin City Council and Greyhound Recycling and Recovery and do not come within the scope of [the environmental information] definition and therefore cannot be the subject of a request for information under the AIE Directive." On or about 2 May 2012, the appellant appealed to my Office against the Council's decision.
In correspondence with this Office, the Council initially stated that the only document considered relevant to the request was an Asset Purchase Agreement (APA) between itself and the Greyhound Recycling and Recovery ("Greyhound") company, a copy of which was provided for the purposes of my review. During the course of the review, however, Ms. Melanie Campbell, Investigator, met with the Council and was shown the full file of records relating to the transfer of the waste collection service. It was explained during the meeting that the Council has exited the waste collection service business by selling the relevant assets and business to Greyhound and that no service level agreements therefore exist. While it was accepted that there are records falling within the scope of items 3 to 5 of the request, Ms. Campbell and the Council agreed that such records do not contain environmental information and therefore do not fall within the remit of the Regulations. Ms. Campbell and the Council differed on whether the APA qualified as environmental information.
The Council also provided written submissions at the meeting and subsequently forwarded a sample of the records falling within the scope of item 5 to this Office. On 28 August 2013, Ms. Campbell notified the appellant of her preliminary view on the matter. The appellant responded with a submission on 29 September 2013. Having had regard to the submissions made by the Council and the appellant, I have decided to conclude this appeal by way of a formal, binding decision.
The question before me is whether the appellant's request is for "environmental information" within the meaning of the AIE Regulations. The appellant accepts, however, that there is no service level agreement as described in item 1 of his request. Item 1 of the request therefore does not form part of this review.
Preliminary Matter of Jurisdiction
In her preliminary view to the appellant, Ms. Campbell indicated that she intended to recommend that the Council be directed to deal with the APA in accordance with the Regulations. The appellant objects to the procedural approach proposed by Ms. Campbell, however. He argues that the ground for the Council's decision was that the requested information is not environmental. According to the appellant, if I determine that the requested information is environmental, then I should annul the Council's decision and order the immediate release of the information concerned. I disagree in the circumstances of this case.
In her Annual Reports, the former Commissioner, Ms. Emily O'Reilly, referred to a number of practical difficulties relating to the operation of the AIE regime in Ireland. Many of the difficulties seem to relate to the fact that the AIE and FOI [Freedom of Information] regimes have not been amalgamated into a single access process as in the UK/Scotland. Consequently, a considerable amount of avoidable confusion between AIE and FOI access rights and procedures seems to exist among public authorities and the public alike.
One area of confusion relates to the matter of jurisdiction. In the UK, a single request covering both environmental and non-environmental information can be accepted as valid in relation to both types of information and then be dealt with through the same overall process under the FOI Act and/or the Environmental Information Regulations (EIRs) as appropriate. In Ireland, in contrast, a request must explicitly state whether it is made under the AIE Regulations or under the FOI Act. If it is made under the AIE Regulations, it may then be rejected on the basis that it is not for "environmental information", since the right of access under AIE applies only with respect to environmental information as defined in Article 3(1) of the Regulations; there is no automatic default mechanism for the request to be dealt with under the FOI Act. If the matter is then appealed to my Office, the question of whether the request is for environmental information or not must be resolved definitively as a threshold jurisdictional matter, since my powers as Commissioner for Environmental Information likewise apply only with respect to environmental information. Moreover, I note that, provided that the public authority appears to be acting in good faith, it would not be a good use of this Office's very limited resources to deal with substantive issues in the alternative while valid threshold questions of jurisdiction remain outstanding, particularly where, as here, the request involves records affecting the interests of a third party.
At the same time, I recognise that a bifurcated approach to dealing with appeals of this nature can be frustrating for appellants because of the delays involved. As the former Commissioner acknowledged in her recent decision in Case CEI/12/0005, Mr. Pat Swords and the Department of Environment, Community and Local Government (9 September 2012), the delays in bringing AIE appeals to completion are certainly regrettable and arguably not in keeping with the State's obligations under the Aarhus Convention. However, as she also acknowledged, the delays will be difficult to overcome given the demands of the AIE regime as it currently operates in Ireland on the one hand and the dearth of available resources on the other. While I have no wish to add to the delays, if a valid threshold question of jurisdiction has been raised, it needs to be resolved before the matter may proceed.
For the time being, it seems to me that the most sensible approach for dealing with appeals involving valid threshold jurisdictional issues is as follows: Once a determination on the threshold question is made, the case should be closed, administratively if agreement is reached but otherwise by way of a binding decision. If it is determined that the matter is within the remit of AIE, and no appeal to the High Court is made, the public authority should then deal with the request in accordance with the Regulations. If the appellant remains dissatisfied with the handling of his request following internal review and thus appeals again to this Office with respect to the original request, then the matter will be reopened administratively without payment of a new fee and given priority treatment by this Office insofar as it is practicable to do so. If, however, it appears that the threshold jurisdictional questions have been raised merely as a delaying tactic, then an alternative approach may be taken.
On the question of my authority effectively to remit a case to the public authority concerned so that it may deal with the request in accordance with the Regulations, I note that Article 12(5) states:
"Following receipt of an appeal under this article, the Commissioner shall-
(a) review the decision of the public authority,
(b) affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and
(c) where appropriate, require the public authority to make available environmental information to the applicant,
in accordance with these Regulations."
The appellant contends that, if I accept that his request is for environmental information, I must annul the Council's decision and direct that the information be released. However, I consider that I may direct the release of environmental information only where it is appropriate to do so in accordance with the Regulations. If I annul a decision, but do not consider it appropriate to direct the release of the information concerned, this necessarily means that some further action on the request by the public authority is required. In other words, I consider that the authority to remit a case for further consideration by the public authority concerned is inherent in the power to annul.
In my view, it would not be appropriate to direct the release of environmental information in an appeal involving a threshold question of jurisdiction raised in good faith where the public authority has not had a fair opportunity to invoke any other grounds for refusal that may be applicable. Moreover, where the request may adversely affect the interests of third parties, it seems to me that the principles of Constitutional and natural justice would require that the affected third parties be given an opportunity to comment before any proposed release is directed. The appellant may consider that the public authority should have taken a "belt and braces" approach by invoking other possible grounds for refusal in the first instance. I would agree that a more comprehensive approach would be advisable where the request is for information that any reasonable person would consider to be "environmental" in nature. However, as the appellant is well aware, the boundaries of the environmental information definition are unclear. I do not believe that public authorities can reasonably be expected to devote significant resources to processing requests under AIE where they have valid concerns that the requested information does not fall within the remit of the AIE Regulations. In such cases, the better practice would be to advise the requester, not only of the right of appeal, but also of the right to make an alternative request under the FOI Act if applicable.
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 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 Directive was adopted to give effect to the first pillar of the United Nations Economic Commission for Europe (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 Directive replaced Council Directive 90/313/EEC, the previous AIE directive, in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. However, while the Directive provides for a right of access to environmental information held by or for public authorities upon request, like the Regulations, the Directive specifies that the environmental information shall be in "material form". The Aarhus Convention also defines environmental information in reference to information in "material form".
The appellant's position is that it is sufficient for the subject matter of his request to fall within one of the six categories of the definition in order for any related information to qualify as "environmental information". He says: "In my view this means that once it has been established that he subject matter of the request falls within one of the six categories of environmental information, then any information relating to that subject matter should be released insofar as it is about, relates to or concerns that subject matter." In response to Ms. Campbell's preliminary view referring to "emails dealing with administrative arrangements", the appellant emphases that the definition of environmental information expressly includes "administrative measures".
In Case CEI/11/0001, Mr. Gavin Sheridan and Central Bank of Ireland (26 March 2012), available at www.ocei.gov.ie, the former Commissioner noted that there are limits to the scope of the AIE regime. Having regard to the comments of the European Court of Justice (ECJ) in Case C-316//01, Glawischnig v. Bundesminister für soziale Sicherheit und Generationen (12 June 2003) in relation to the definition of environmental information, she found that, in order for information to qualify as "environmental information" for purposes of the Regulations, it is necessary for the information to fall within one of the six categories set out in the definition in Article 3(1).
In relation to the question of "activities" under paragraph (c) of the definition, Ms. O'Reilly noted that such 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 found 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.
With some reservation, Ms. O'Reilly accepted that official travel by car is an activity within the ambit of paragraph (c) of the definition. However, she questioned 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). In Case CEI/12/0008, Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht (13 March 2013), Ms. O'Reilly observed:
"I have since given this question further consideration in light of my recent decision in CEI/11/0007, Mr. Pat Swords and Department of Environment, Community and Local Government (20 February 2012), finding that it is neither permissible nor reasonable having regard to the Directive for public authorities to impose search and retrieval fees for the work involved in processing AIE requests. The basis for finding that search and retrieval fees are not reasonable is that it is apparent that the scheme of the AIE regime envisions that the environmental information held by public authorities will be systematically organised, catalogued, and at least ready for examination in situ free of charge and even active dissemination to the public by information technology or by other electronic means. The corollary to the requirements of the AIE regime must necessarily be, however, that public authorities are permitted to take a reasonable, objective, and pragmatic approach to the definition of environmental information. Moreover, I note that, in the recent "Report from the Commission to the Council and the European Parliament on the experience gained in the application of Directive 2003/4/EC on public access to environmental information", dated 17 December 2012, the European Commission drew a distinction between the access rights that exist for environmental information, described as 'information in any form on the state of the environment or on the state of human health and safety', on the one hand, and for 'general administrative information' on the other."
I generally agree with my predecessor's approach to the environmental information definition. While the definition is broad, the examples it provides are meant to illustrate the types of information that it encompasses. As noted by the Scottish Information Commissioner's briefing document on the definition of environmental information, activities are not described, but the Aarhus Implementation Guide [The Aarhus Convention: An Implementation Guide (Second edition, April 2013)] refers to "decisions on specific activities, such as permits, licences, permissions . . . ." The Aarhus Implementation Guide further states: "The test is whether the activities or measures may have an effect on the environment." Whether the link between the information concerned and the effect on the environment is sufficient to bring the information within the ambit of the definition is a matter of judgment that may depend upon the circumstances of the case. If in doubt, I consider that it is appropriate to have regard to the purpose of AIE as reflected in Recital (1) of the Directive: AIE is about environmental decision-making, not the general administrative activities of public authorities.
The European Commission itself has recognised that the access rights that exist for environmental information, described as 'information in any form on the state of the environment or on the state of human health and safety', are distinguishable from the right of access to 'general administrative information'. While subparagraph (c) specifically refers to "administrative measures", as the appellant emphasises, I believe that this is merely intended to highlight that the term "measures" is not limited to legislative measures or matters of policy. While it would be helpful from a practical point of view if the AIE and FOI regimes were amalgamated into a single access process as in the UK/Scotland, given the obligations on public authorities that AIE imposes, it is vital to the integrity of AIE that it not be seen by the public as merely an alternative access mechanism for information that is more readily understood as falling within the ambit of the FOI Act.
I further note that, in its December 2012 report to the European Parliament, the European Commission also described the ECJ's judgment in Case C-266/09, Stichting Natuur en Milieu and Others v College voor de toelating van gewasbeschermingsmiddelen en biociden (16 December 2010), in relation to "a procedure for authorisation of a plant protection product" as taking a broad interpretation of environmental information definition. The "procedure" concerned involved a decision setting the maximum permitted residue level for the pesticide propamocarb on or in lettuce at 15 mg/kg, and the disputed information consisted of related studies on residues and reports of field trials. While the Court was satisfied that the term "environmental information" includes such information, its reasoning was not what I would regard as simplistic, i.e. it does not appear to have been sufficient that the information simply "related to", however distantly, an element of the environment such as biological diversity. If such a finding may be lauded as representing a broad interpretation of the definition, this suggests to me that the definition, while more expansive that it was under the previous AIE directive, is still generally intended to bear some resemblance to what may be commonly understood as information of an environmental nature. I certainly do not accept that the appellant's suggested approach to the definition is appropriate.
In light of the above, I make the following findings:
I find that waste collection is an activity within the meaning of Article 3(1)(c) of the environmental information definition and that the Asset Purchase Agreement providing for the transfer of the waste collection service to a private operator is information on that activity. Accordingly, I am satisfied that the requested APA qualifies as environmental information for the purposes of the AIE Regulations and should be dealt with by the Council accordingly. However, while the overall effect of the APA, i.e. the transfer of the waste collection service, may be viewed as affecting or likely to affect waste, it should be acknowledged that the APA itself is in essence a commercial document. Apart from Schedule 4, which deals with Minimum Environmental Standards, its terms relate to financial and social matters (i.e. the Waiver Scheme).
The Council has indicated that it would have no objection to making Schedule 4 available. Moreover, as the appellant has been advised, a list of waste collection permit holders who hold a licence to provide household kerbside collections in the Dublin Region is available at www.dublincity.ie/WasterWasteEnvironment/Waste/Pages/WasteRecycling.aspx on the Council's website. A list of all waste collection permit holders in the country is also publicly available through Offaly County Council.
In my view, the remaining items of information at issue do not meet the definition of environmental information under the Regulations. The link between these items of information and any effect on the environmental elements and factors referred to in paragraphs (a) and (b) of the definition is simply too remote. The appellant has indicated that at item 3 of his request he seeks access to the list held by the Council of the potentially interested parties who were contacted as prospective bidders for the purchase. The identity of a company that the Council considered to be potentially interested in bidding for the purchase has no bearing on the environment, nor does the name or other identifying information about any company that was unsuccessful in the bidding competition. As noted, however, a list of relevant permit holders is publicly available on the Council's website.
The records falling within the ambit of item 4 of the appellant's request, which are very few in number, are simply emails dealing with administrative arrangements. The agreement had been signed on 2 December 2011 and there was no further substantive work to be done on the matter until Greyhound took over the service on 16 January 2012. Records falling within item 5 of the request, on the other hand, relate to the negotiations over the commercial terms of the agreement. The negotiations, as opposed to the concluded agreement, have no environmental impact. As noted above, while I accept that the APA is environmental information because it has the effect of transferring the waste collection service, it is in essence a commercial document. In this context, I agree with the Council that items 4 and 5 do not qualify as environmental information within the meaning of the Regulations.
For the sake of clarification, I wish to emphasise that I do not mean to suggest that draft documents, emails, and other records of communication do not qualify as environmental information as a class. The context of the information must be considered. Thus, for instance, in a case involving an enforcement action in relation to illegal dumping, the entire file of relevant information may, depending upon the circumstances, fall within the ambit of the environmental information definition. In this case, however, the context of the information requested is such that, apart from the APA itself, it does not qualify as environmental information.
In accordance with Article 12(5) of the Regulations, I have reviewed the decision of Council in this case. I find, for the reasons set out above, that the Council was justified in refusing access to items 3 to 5 of the appellant's request on the ground that the information concerned is not environmental information within the meaning of the Regulations. I find that the Council was not justified in refusing access to item 2 of the request, consisting of an Asset Purchase Agreement providing for the transfer of the Council's waste collection service, on the ground that it is not environmental information within the meaning of the Regulations.
I hereby vary the decision of Council by annulling its refusal of item 2 of the request on the basis that it is not environmental information within the meaning of the Regulations. In the light of this decision, the Council must now process item 2 of the appellant's request in accordance with the Regulations, having regard in particular to Articles 10(3) and (4) of the Regulations.
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.
Commissioner for Environmental Information