Case number: CEI/13/0006

Court of Appeal

Minch -v- Commissioner for Environmental Information & Anor [2017] IECA 223

Appeal to the Commissioner for Environmental Information

Case CEI/13/0006

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2011

Appellant: Mr. Stephen Minch

Public Authority: Department of Communications, Energy and Natural Resources (the Department)

Issue: Whether the Department was justified in refusing access to the report entitled "Analysis of options for potential State intervention in the roll out of next-generation broadband" on the ground that the information concerned is not environmental information within the meaning of the AIE Regulations

Note: This decision was set aside on appeal to the High Court in February 2016. The subsequent appeal by the Commissioner and the Minister to the Court of Appeal was dismissed on 28 July 2017.

Background

In a request dated 18 May 2013, the appellant sought access under the AIE Regulations to the report entitled "Analysis of options for potential State intervention in the roll out of next-generation broadband". The Department took no action on the request within the one-month deadline specified in Article 7 of the Regulations. On internal review, however, the Department refused the request on the basis that the report concerned is not environmental information within the meaning of Article 3(1) of the AIE Regulations. Alternatively, the Department claimed that the report would be subject to refusal under Articles 8(a)(iv) (confidentiality of proceedings of public authorities) and Article 9(1)(c) (commercial or industrial confidentiality) of the AIE Regulations.

In an appeal received by this Office on 31 July 2013, the appellant challenged the Department's decision to refuse access to the report under the AIE Regulations. He argued that the report qualifies as environmental information under subparagraphs (b), (c), and (e) of definition and that the refusal grounds referred to are disqualified by virtue of Article 10(1) of the Regulation on the basis that the report relates to "emissions into the environment". He stipulated, however, that his submission is "confidential and may not be shared with the [D]epartment".

In a letter dated 10 July 2014, Ms. Melanie Campbell, Investigator, explained to the appellant that she agreed with the Department that the report concerned is not environmental information within the meaning of the Article 3(1) of the Regulations. In doing so, she gave the appellant a brief description of the report and also explained her understanding of the nature of the National Broadband Plan (NBP). She also referred to previous decisions of this Office addressing the scope of the environmental information definition and to the judgement of the European Court of Justice in Case C-524/09, Ville de Lyon ( 22 Dec. 2010), available at www.bailii.org.

In his response to Ms. Campbell's letter, the appellant indicated that he did not accept her view of the matter, but he made no further arguments beyond referring to his previous submission dated 24 July 2013 in relation to the relevance of the information in the report to Articles 3(1)(b), (c), and (e) of the Regulations. Accordingly, I have decided to conclude this appeal by way of a formal, binding decision. While my decision does not comment or make findings on each and every argument raised by the appellant in his submission, all relevant points have been considered.

Scope of Review

The question before me is whether the report entitled "Analysis of options for potential State intervention in the roll out of next-generation broadband" 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 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.

Analysis and Findings

In Case C-204/09, Flachglas Torgau GmbH v. Federal Republic of Germany (14 Feb. 2012), available at www.bailii.org, the European Court of Justice (ECJ) clarified that "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. In line with with judgment of the ECJ in Case-316/01, Glawischnig v. Bundesminister für soziale Sicherheit und Generationen (12 June 2003), available at www.bailii.org, I take the view 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). As I explained in Case CEI/12/0004, Mr. Gavin Sheridan and Dublin City Council (20 Dec. 2013), available at www.ocei.gov.ie, it is not sufficient that the requested information simply "relates to" one of the six categories, however distantly. It is also noteworthy that the judgment of the ECJ in Case C-524/09, Ville de Lyon ( 22 Dec. 2010), involving a request for access to trading data relating to greenhouse gas emission allowances, indicates that not all information with a connection even to greenhouse gas emissions necessarily qualifies as environmental information within the meaning of the Directive.

As the appellant is aware, the report in question has been described by the Department as follows:
"This Report is a financial and technical analysis of options for potential State intervention in the roll out of next generation broadband and was commissioned by the Department in the context of the National Broadband Plan for Ireland. The purpose of the Report was to develop a financial model to calculate the likely capital expenditure associated with deploying next generation broadband under a number of different scenarios. It contains no environmental content."

Based on my examination of its contents of the report, I agree that its purpose was to examine the cost of deploying next-generation broadband (NGB) infrastructure to areas that the private sector is not expected to serve based on a range of options or scenarios of a technical nature, i.e. to develop a financial model to calculate the likely capital expenditure associated with deploying NGB infrastructure for each of the scenarios identified by the Department in order to provide the Department with an understanding of the scale of investment required for each case. In other words, put simply, the report is about the cost implications for the State of deploying various types of NGB infrastructure to areas underserved by the private sector.

As Ms. Campbell explained to the appellant, the need for such an exercise derived from the targets set out by the European Commission (EC) in the Digital Agenda for Europe (DAE). The technologies under consideration are not discussed in the report in terms of their potential impact on the environment but rather in terms of their performance characteristics and related cost implications. For instance, the report does not address such matters as spectrum availability or even the planning issues associated with the relevant technologies, but rather notes that actual deployment may differ from the illustrative scenarios discussed as a result of such matters. In the circumstances, I do not accept that the report provides information on factors such as energy, radiation, or emissions affecting or likely to affect the elements of the environment; thus, I find that the report does not qualify as environmental information under Article 3(1)(b) of the definition. I also do not accept that the report provides information on a measure or activity affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) of the environmental information definition. It follows that I find no basis for concluding that the report, in and of itself, qualifies as environmental information within the meaning of Article 3(1)(c) of the Regulations.

Like Ms. Campbell, I have also considered the question of whether the National Broadband Plan (NBP) may itself be a "measure" within the meaning of Article 3(1)(c) such that the requested report could qualify under paragraph (e) of the environmental information definition. However, I agree with Ms. Campbell that the NBP is merely a high level strategy setting targets for the delivery of high speed broadband throughout Ireland. As the Plan itself explains: "The DAE requires all Member States to publish national broadband plans by 2012 to facilitate the achievement of high speed broadband targets." The plan contains a number of different policy objectives to achieve the targets, such as a review of the national spectrum policy, publication of a national digital strategy, infrastructure barrier removal, and a proposed State intervention to ensure that the targets for broadband availability are met throughout the country. Nevertheless, in my view, the NBP is not itself a measure affecting or likely to affect the environmental elements and factors referred to in paragraphs (a) and (b) of the definition. The link between the plan and any effect on the environment is simply too remote, unlike the measures and activities that may be adopted to implement the plan. Indeed, the appellant's own submission refers to many of the variables involved which would in turn affect or be likely to affect factors such emissions, discharges and other releases into the environment. I therefore do not consider that the requested report qualifies as environmental information by virtue of Article 3(1)(e). I conclude that the Department's decision to refuse the appellant's request in this case was correct. I note, however, that the appellant is entitled to seek access to the report he seeks under the Freedom of Information Act 2014.

Decision

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


Peter Tyndall
Commissioner for Environmental Information