Case number: CEI/13/0001

Appeal to the Commissioner for Environmental Information
Case CEI/13/0001

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2014 (the Regulations)

Appellant: Friends of the Irish Environment, Kilcatherine, Eyeries, Co Cork.

Public Authority: Department of Agriculture, Food and the Marine (the Department)

Issue: Whether the Department was justified in refusing the appellant's request for information relating to fin fish aquaculture sites in Kenmare Bay and Bantry Bay.

Summary of Commissioner's Decision:

In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the Department in this case. He varied the decision of the Department and found that it was justified in refusing the request on the ground that the information sought is not "environmental information held for a public authority" within the meaning of the Regulations, except in so far as records of inspections carried out by Department officials are held by the Department. He found that only parts of the inspection reports fell to be considered in this appeal and that only certain sections of those reports, and associated attachments, are within the scope of the request. He further found that the information in these sections is environmental information and that it relates to emissions so that Article 10(1) applies. Therefore, he directed the release of certain specified information. He further found that Article 7(5) of the Regulations applied to any other information which the appellant contends is within the scope of the request.

Background

In its request of 1 November 2012, the appellant sought the following information for all fin fish aquaculture sites in Kenmare Bay and Bantry Bay:
1. Feeding of SLICE including quantities and data;
2. Incidence of disease and their treatments including dates, the name of the chemical, amounts used per treatment, disposal methods and locations;
3. The results of testing following treatment for compliance with the EC(Control of Dangerous Substances in Aquaculture) Regulations, 2008 including dates and locations.
The appellant also stated that it was seeking the raw data on these emissions, not summary reports.

The appellant had previously sought this information from the Department in May 2012. At that time the Department stated in its decision that it "had decided to grant your request" and went on to inform the applicant that the information sought was maintained by the individual operators in accordance with the relevant statutory provisions.

In its decision on the request of 1 November 2012, the Department stated that the May 2012 decision "still pertains". The appellant sought an internal review of the Department's decision on 12 December 2012, on the basis that, in its view, the information is in effect held by the Department and must be made available by the Department under the Regulations. In its internal review decision of 14 January 2013, the Department stated that "the records in question are not held by the Department", but did not alter the original decision.

The appellant submitted an appeal to my Office on 6 February 2013. In a submission, the Department said that it had "effectively refused" the request. It also stated that it had contacted the Marine Institute (MI) and the veterinary inspectorate (VI) of the Department and both had indicated that the information sought was not held by them.

Ms. Brenda Lynch, Investigator informed the appellant of her view by letter of 1 May 2014 that, while the information sought is created and held by individual operators so as to comply with statutory requirements relating to food safety and must be made available for inspection, it is not held "on behalf of" the Department and so it not held by the Department. The appellant responded with a submission arguing that the request had been granted and that the information was held by the Department. After further consideration of the appeal and the scope of the request, this Office asked the Department to clarify whether any inspections had been carried out by Department officials under the relevant legislation, and if so, whether copies of any records had been taken or any other relevant records existed, as this had not been addressed in the Department's submissions. In its response in July 2014, the Department said that it had again contacted the MI and the VI, and that the VI had found no evidence of the existence of any relevant inspection records. However, the MI had now identified a number of records relevant to Item 2 of the request which had been overlooked earlier.

The Department argued that the exceptions provided for at Articles 8(a)(ii) and 9(1)(c) of the Regulations applied to the 21 records which had been identified. Copies of the Department's consultation with the two affected third parties, and the responses received were also provided. There followed a series of contacts between the Investigator and the Department, including a meeting on 18 June 2015, in order to clarify the situation since the Department submissions had not adequately addressed the requirements of the Regulations. At the meeting, the issue arose as to whether I have jurisdiction to consider the records provided by the MI, via the Department, in circumstances where the information is held by a separate public authority.

I regret the delay that arose in dealing with this appeal, which was due both to resource issues and also to the Department's handling of the request falling short of what might reasonably be expected. A further issue which arose was that the records identified related to the business affairs of private fish farm operators. Unlike the FOI Act, the AIE Regulations make no specific provision for notifying third parties of an appeal. Nevertheless, in carrying out my functions, I must have regard to the requirements of Constitutional and natural justice. I also note that, under Article 13(1) of the Regulations, any person affected by my decision has the right of appeal to the High Court, which implicitly acknowledges that the rights of an affected third party must be taken into account in carrying out a review.

In view of the protracted engagement on this appeal with the Department and its failure to adequately address some of the queries raised by my Office, I have decided to bring this appeal to a conclusion now by way of a formal, binding decision. In so doing, I have taken account of the submissions of the appellant and the public authority and the provisions of the Regulations. I have also had regard to the position of the third parties as set out in their responses to the Department and to the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations[the Minister's Guidance]; Directive 2003/4/EC [the Directive], upon which the AIE Regulations are based; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to 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.

Scope of Review

Initially in this review, the question before me was whether the information the subject of the appellant's request is "environmental information held for a public authority" within the meaning of the AIE Regulations. However, given the sequence of events outlined above, I must also address whether the Department's refusal of the records containing information identified by it as being within the scope of the request was justified. In so doing, I must address the following issues:
Do I have jurisdiction to consider the records identified and provided by the Department in this appeal?
Are the records encompassed by the terms of the request?
Is the information in the records environmental information?
On examination, it emerged that three of the records identified were created after the request of 1 November 2012 was received and are therefore outside scope of the review. For the avoidance of doubt, the records in respect of which the above questions must be addressed are records 1-4, 6, and 8-20 on the schedule provided by the Department.

Preliminary Matters

Decision of the Department
In its response of May 2014 to my Office, the appellant continued to be of the view that the Department granted its request and that the matter at issue was it being provided with the necessary procedures and assistance to obtain the information sought. Despite the Department stating in its decision of May 2012 that it had granted the request and that the information sought was held by the individual operators, I am satisfied that the Department's decision was, in fact, a refusal of the request on the grounds of Article 7(5) of the Regulations.

Article 7(7) provisions
The appellant identified Article 7(7) of the Regulations in support of its position. Article 7(7) provides that where a request is made to a public authority which could reasonably be regarded as a request for environmental information, but is not made in accordance with Article 6(1), the public authority shall inform the applicant of his or her rights of access to environmental information and the procedures by which that right can be exercised, and offer assistance to the applicant in this regard. I am satisfied that this Article provides that the applicant be informed of the provisions of Article 6(1) of the Regulations and offered assistance in making a request which complies with Article 6(1). I am further satisfied that Article 7(7) is not intended to provide an applicant with a right of access to information beyond that which is provided for in the Regulations.

Status of Marine Institute
The MI is a separate statutory body established by the Marine Institute Act, 1991 ,
"to undertake, to coordinate, to promote and to assist in marine research and development and to provide such services related to research and development, that in the opinion of the Institute, will promote economic development and create employment and protect the marine environment."

According to its website, the MI is the Competent Authority responsible for the implementation of Council Directive 2006/88/EC in Ireland which deals with the health of aquaculture animals and the prevention and control of certain aquatic diseases. The Directive was transposed into Irish Law by the European Communities (Health of Aquaculture Animals and Products) Regulations 2008 (SI No. 261 of 2008), the European Communities (Health of Aquaculture Animals and Products (Amendment) Regulations 2010 (SI No. 398 of 2010) and 2011 (SI No. 430 of 2011).

Article 3(1) of the Regulations provides that

"'public authority' means, subject to sub-article (2)-
(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),

and includes-

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute"
I am satisfied that the MI is a public authority for the purposes of the regulations, and my Office has dealt with previous appeals where the MI was the relevant public authority.

It seems to me that the Department ought to have been aware of the statutory position and role of the MI and of the possibility that it would hold records relevant to the request. In such circumstances, I consider that it would have been appropriate for the Department to transfer the original request to the MI at the outset to deal with the information held by it in accordance with Article 7(6)(a) , or to have informed the applicant that the request should have been directed to the MI in accordance with Article 7(6)(b) of the Regulations. Unfortunately, it did neither.

Analysis and Findings

Is the information sought "held for a public authority"?
The AIE Regulations are based on Directive 2003/4/EC. In line with Article 2(4) of the Directive, Article 3(1) of the Regulations defines "environmental information held for a public authority" as meaning "environmental information that is physically held by a natural or legal person on behalf of that authority". One issue to be addressed in this appeal is whether the information sought is held "on behalf of" a public authority and so can be said to be "held for a public authority". In its submissions, the Department informed my Office that the information sought is maintained by individual operators in accordance with the relevant EU and national statutory provisions. These include SI No. 786 of 2007 - European Communities (Animal Remedies) (No. 2) Regulations 2007 and SI No. 466 of 2008 European Communities(Control of Dangerous Substances in Aquaculture) Regulations 2008. Article 42 of SI No. 786 of 2007 requires owners or persons in charge of food producing animals to maintain certain records and retain them for five years and make them "available on request to an authorised officer". This article also provides for the retention of copies of any veterinary prescriptions and for these to be made available for inspection. Article 8 of SI No. 466 of 2008 provides for a licensee to maintain and make available for inspection records which relate to the activity subject to an aquaculture licence. It is clear that the information sought is required to be created and maintained by the individual operators so as to comply with statutory obligations, provided for in SI No. 786 of 2007 and SI No. 466 of 2008, which also make provision for the records to be made available to authorised officers.

The appellant is of the view that the statutory requirement to create, maintain, retain and make available the records means that the records are held on behalf of or for the Department to enable it to carry out its statutory functions of a supervisory nature and ensuring that licensing requirements are being met.

I have not been able to identify any statutory provisions or judgments of the court to support the view that information, such as that sought by the appellant, is held "for" the Department. If it were the case that the information was held for the Department, I do not see that it would have been necessary to make specific legislative provision for the creation, maintenance, retention and inspection of the information. The consequences of a finding in this appeal that the information sought is held for the public authority and therefore, subject to the Regulations, would lead to an unreasonable situation whereby any information required to be held in order to comply with statutory obligations could be the subject of an AIE request to a public authority even though the information itself was held by various private entities. Having considered the submissions of the appellant and the Department, I am satisfied that the information sought, apart from in those records addressed below, is not held by the Department and I find accordingly.

Records provided by the Department - Do I have jurisdiction to deal with them in this appeal?
The records identified as relevant by the Department in the course of this review and within the temporal scope of the request comprise ten laboratory reports on analysis of fish samples and eight "Fin-fish Site Inspection Form" reports. The laboratory reports were prepared by the MI. According to the Department, the inspection reports are preprinted forms completed by hand by inspectors attached to the Department's VI. The reports comprise a cover sheet, four sections dealing with Fish Health, By-products, Feed and Medicines and some supporting attachments. All of the inspection reports provided indicate that these were "Normal 2006/88/EC" inspections. According to the Department and the MI, the part of the inspections dealing with Fish Health is carried out by VI inspectors on behalf of the MI, and the other parts of the inspection are carried out under the relevant Animal Health regulations.
At the meeting held on 18 June with representatives of the Department, the MI and the VI, it was outlined to the Investigator that the inspections are carried out and the inspection reports in full are sent to the MI, who then take "their" part and send the other three parts to the Department. The Department said that it only obtained the records provided from the MI in response to the queries raised by the Investigator in June 2014, and did not hold these records before that. While this may well be the case for the laboratory reports and parts of the inspection reports, it does not make any sense to suggest that the Department did not hold the records of the three parts of the inspection reports relevant to its Animal Health responsibilities. No explanation has been offered by the Department as to why these reports were not identified as relevant in response to the original or internal review requests, or indeed when my Office queried the issue in 2014.

The Department has not provided details of the nature of the arrangement between the MI and the VI, despite being clearly aware that this was an issue - in fact one which had effectively been raised by it. The question arises as to whether the Department can be said to have had control of the MI parts of the records when not provided for any other purpose than addressing the AIE request/query and only after my Office had raised the query with it in June 2014. There is clearly a close relationship between the Department and the MI and it is reasonable to be expect that the MI would provide the Department with information when sought. However, in this particular set of circumstances it is not clear whether the Department "held" all the records which they provided to my Office.

The Investigator raised this issue with the appellant who agreed, in order to bring this process to a conclusion, to withdraw the "MI records" from consideration in this appeal and make a fresh request to the MI for any relevant records that it holds. Therefore, it is not necessary for me to determine whether the records obtained from the MI in the context of this appeal were under the control of the Department at the time they were provided to my Office or indeed at the time of the request was received, This means that I will not deal with the Fish Health part of the inspection reports (Records 3, 4, 6 and 8-12) or the laboratory reports (Records 1, 2 and 13-20) any further in this decision.

Are the remaining parts of records 3, 4, 6 and 8-12 within the scope of the request?
The records remaining under consideration of this review are those parts of the inspection reports dealing with Processing and Waste Management (Section I and J), Feed (Section K) and Medicines (Section L), related parts of Section M and related attachments. As set out above, these records were identified and provided to my Office by the Department as relevant to Item 2 - Incidence of disease. Having examined the records in detail, it seems arguable that only Section L is directly relevant to the request as worded. However, as it is a reasonable proposition that there would be waste generated by the administration of medicines in this context, I have decided that Sections I and J of the inspection reports should be considered to be within the scope of the request. I am satisfied that Feed (Section K) includes no information on Incidence of disease.

Is the information environmental information?
This appeal proceeded on the basis that the information sought, if held, would come within the definition of "environmental information" as set out in the Regulations. No issue was raised in this regard by the Department during the 2013 or 2014 correspondence. However, the Department's VI representative in an email in May 2015, expressed the view that the information in parts of the inspection reports relevant to the VI was not "environmental information". In a follow up email to the Department following the meeting of 18 June, the Investigator confirmed her view that the information in the records is environmental information on the basis that it falls within part (c) of the definition of environmental information. She outlined that she considered that fish farming is an activity affecting the state of the elements of the environment. In this case, the fish farms at issue are located in the sea in Kenmare and Bantry Bays. Part (a) of the definition of environmental information refers to the elements of the environment including coastal and marine areas. I understand that by their very nature, the feeding of the fish takes place by feedstuff being dropped into the sea where the fish farms are located. One of the ways in which medicines are administered is by adding the appropriate quantities of medicines to the feedstuff. Nothing has since been received from the Department as to whether its overall position is the same as that of the VI representative. I see no reason to disagree with the Investigator's view; I find that the information at issue is environmental information and have proceeded on that basis.

Exceptions claimed by the Department
The grounds for refusal of a request for environmental information are set out in Articles 8 and 9 of the AIE Regulations, but any proposed refusal is subject to the provisions of Article 10 of the Regulations. Article 10(1) states:

"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".

Article 10(3) of the Regulations requires public authorities to consider each request on an individual basis and to weigh the public interest served by disclosure against the interest served by refusal. 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. I take this to mean, in line with the Minister's Guidance, that there is a presumption in favour of the release of environmental information. In addition, Article 10(5) clarifies, in effect, that a request should be granted in part where environmental information may be separated from other information to which Article 8 or 9 applies.

In its various submissions, the Department claimed that the exceptions provided for at Articles 8(a)(ii) and 9(1)(c) applied to protect the information from release.

In the course of the appeal, the Department appeared to accept that the provisions of Article 8(a)(ii) could only apply to some information in those parts of the inspection reports carried out on behalf of the MI, as the Department "is legally entitled to obtain the information gathered in the inspection process in relation to by-products, feed and medicines". In view of the position taken above in relation to the MI records, it is not necessary for me to address the application of this exception any further.

Article 9(1) provides that a public authority may refuse to make available environmental information where disclosure would adversely affect:

"(c) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest"

Before I go on to deal with the application of Article 9(1)(c) to the information at issue, I must first consider the application of the Article 10 provisions and in particular Article 10(1).
Does the information relate to emissions?
In effect, Article 10(1) operates to disapply Articles 8 and 9(1)(c). Therefore, if the information can be said to "relate to emissions into the environment", then it must be released, whether the provisions of Article 9(1)(c) apply or not. Therefore, in the circumstances of this case, I consider it appropriate for me to consider this aspect first and only if I find that the information does not relate to emissions, will I consider whether 9(1)(c) applies to protect it from release.

The Minister's Guidance states that "emissions should be construed as discharges of whatever kind to all environmental media". The Aarhus Guide states, at page 88 under the heading "Defining Emissions", that the term "emission" has been defined in the Industrial Emissions Directive (2010/75/EU) as a "direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into air, water or land".

The Department suggested that, even if the information (the inspection reports) was determined to be "environmental information", it clearly did not fall within the definition of "emissions". It referred to the definition of "emission" set out above and also to that of "installation" in the same Directive (2010/75/EU), i.e. "installation means a stationary technical unit within which one or more activities listed in Annex I or in Part 1 of Annex VII are carried out, and any other directly associated activities on the same site which have a technical connection with the activities listed in those Annexes and which could have an effect on emissions and pollution." According to the Department, fish farming is not referred to in the Annexes mentioned, and therefore, as fish farming of the nature at issue here is not covered by the definition of "installation", by extension nor does it fall within the definition of "emission".

The appellant stated that there can be no doubt that the chemicals used for the treatment of e.g. lice are emitted to the environment. It said that the spent treatment water is also disposed of in the sea. It contended that medicines and biocides are substances that go directly into the "open environment".

I note that the European Communities (Control of Dangerous Substances in Aquaculture) Regulations, 2008 (SI No. 466 of 2008) is described in its explanatory note as giving effect to Directive 2006/11/EC of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment [in] so far as the Directive relates to the protection of waters in the marine environment from aquaculture activities. This Regulation makes reference to the "discharge of dangerous substances" and to "emission standards". In an annex to the Regulation, it sets out the Environmental Quality Standards which apply to substances used in the treatment of marine finfish in aquaculture facilities.

The Regulations have to be interpreted in light of the Directive. The Supreme Court approved of this approach in its judgment in NAMA -v- Commissioner for Environmental Information [2015] IESC 51. The Court held that "In order to understand what the statutory instrument means and does in this case, it is necessary, perhaps first, to understand exactly what the Directive does and means, which in this case may also mean interpreting the provisions of the Convention". The General Court of the European Union interpreted the relevant provision of the Directive in Case T-545/11 (Stichting Greenpeace Nederland-v-Pesticide Action Network Europe) and held that, in order for environmental information to constitute information on emissions, "it suffices that the information requested relates in a sufficiently direct manner to emissions into the environment". The General Court went on to state "The Court of Justice has held that the Implementation Guide's Interpretation of the Aarhus Convention is not binding (Case C-204/09 Flachglas Torgau [2012] ECR, para 36)." It went on to say that the definition of "emission", drawn from Directive 96/61, updated by Directive 2010/75/EU, can be explained by the purpose of that directive, "namely integrated prevention and control of pollution resulting from exclusively industrial activities." The General Court further set out that "neither the scope of application of the Aarhus Convention nor that of Regulation No 1367/2006 is limited to the consequences of such activities. Therefore, the definition of emission in the environment which emerges from the Implementation Guide cannot be used to interpret Regulation No 1367/2006." As Regulation No 1367/2006 deals with the application of the Aarhus Convention to the institutions of the European Union, it is reasonable for me to apply this interpretation to Directive 2003/4/EU and to the Regulations.

Therefore, it seems to me that in order for Article 10(1) to apply, I should be satisfied that the information contained in the records withheld by the Department relates in a sufficiently direct manner to emissions into the environment. As set out above, the fish farming activity to which the records relate takes place in the sea. The fish are fed by the dropping of feed into the sea and, I understand that medication can be administered by being added to the feed or by being added to the water in the cages in the fish farms. There are two possible approaches to the question of whether this constitutes an emission into the environment and consequently, whether information on, in this case, administration of medication, constitutes information relating to emissions into the environment in a sufficiently direct manner so as to engage the provisions of Article 10(1) of the Regulations. One approach is that anything added directly to the water is an emission - in this case, the administration of feed and medication added to the water can be said to be an emission. The other approach adopted by the UK Information Commissioner is that "emissions will generally be a by-product of another activity or process which are added or potentially added to the environment and over which any control is relinquished". In this case, even if one was to take the view the that feeding/medicating of the fish was a controlled activity and therefore, not an emission, the fact that (a) not all of the feed/medication will be ingested; (b) there is no control over the extent to which the material will be ingested; and (c) that feed generates waste over which there is also no control, leads me to the view that the information can be said to relate to emissions.

Having examined the information and considered all of the above, I am satisfied that the information in Section I, J, L and parts of Section M related to Sections I, J and L of the inspection reports and relevant attachments relates in a sufficiently direct manner to emissions into the environment for Article 10(1) to apply. I find accordingly.

Consideration of Article 9(1)(c)
As I have found that the information at issue relates to emissions, it is the case that even if I were to determine the application of Article 9(1)(c) and find it to apply, the information would fall to be released on the basis that Article 10(1) applies. Therefore, I do not consider it necessary for me to determine the application of Article 9(1)(c) in the circumstances of this appeal.

I should say that I have noted the submissions of the Department in relation to its claim that Article 9(1)(c) applied. The Department failed in its submissions to engage adequately with the provisions of Article 10.

Article 7(5)
Article 7(5) of the AIE Regulations is the provision that applies where the requested information is not held by or for the public authority concerned. A similar though not identical ground for refusal in relation to records ''not held'' is provided for under section 15(1)(a) [formerly section 10(1)(a)] of the Freedom of Information (FOI) Act. In previous decisions published on my website at www.ocei.gov.ie, I have explained that my approach in dealing with cases where a public authority has effectively refused a request under Article 7(5) is guided by the experience of the Office of the Information Commissioner in relation to section 15(1)(a) [formerly section 10(1)(a)] cases.

In relation to Item 3 of the request, neither the MI nor the VI provided my Office with any information. The Investigator put it to the Department that it should hold some records indicating compliance or otherwise with the standards as set out in the European Communities (Control of Dangerous Substances in Aquaculture) Regulations, 2008 (SI No. 466 of 2008), as the Regulation had been signed by the Minister for Agriculture, Fisheries and Food. In July 2015, the Aquaculture and Foreshore Management Division of the Department repeated its position that the records were maintained by the individual operators but undertook to review this matter again, and informed my Office on 31 July 2015 that a further due diligence search for records had been carried out and no records falling within the parameters of the AIE request had been found. In the circumstances, I have no basis on which to find that information within the scope of Item 3 is held by the Department, nor have I been able to determine any further reasonable steps I might take to investigate this issue further.

Apart from those records dealt with in this decision relating to Item 2, I find that Article 7(5) applies to the information sought.

Decision

In accordance with Article 12(5) of the AIE Regulations, I have reviewed the decision of the Department in this case. I hereby vary the decision of the Department and find that the Department was justified in refusing the appellant's request on the ground that the information sought is not "environmental information held for a public authority" within the meaning of the Regulations, except in so far as records of inspections carried out by Department officials are held by the Department. I find that only parts of the inspection reports fall to be considered in this appeal and that only Section I, J, L and M of these reports, and associated attachments, are within the scope of the request. I further find that the information in these sections is environmental information and that it relates to emissions so that Article 10(1) applies. Therefore, I direct the release of Sections I, J, L, relevant parts of Section M and relevant attachments. I further find that Article 7(5) of the Regulations applies to any other information which the appellant contends falls within the scope of the request.

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.


Peter Tyndall
Commissioner for Environmental Information