Case number: CEI/14/0007
On 12 March 2014, the Department received a request from the appellant made on behalf of Friends of the Irish Environment (FIE) seeking access under the AIE Regulations to the preliminary scientific and technical reports referred to by the Minister in his Parliamentary reply dated 4 March 2014, and any supporting documentation and related records, regarding the storm damage at Gearhies, Bantry Bay, on 1 February 2014. The Minister's Parliamentary reply was a written answer provided in response to a question posed by Deputy Clare Daly regarding the reports the Minister had been given in relation to the fish that had been lost in the storm on 1 February as a result of damage to the cages of a certain fish farm in Bantry Bay, County Cork. The cages had contained approximately 250,000 fish prior to the storm, but during a survey that took place when weather conditions abated, it was confirmed that only about 20,000 live fish remained. In his written answer, the Minister stated:
"My Department's Engineering Division in conjunction with the Marine Institute conducted a survey at the site referred to by the Deputy at the first available opportunity and have provided preliminary scientific and technical reports to my Department.
There is evidence to indicate that due to a mooring failure the nets on the three cages appear to have 'bagged', trapping fish and leading to extensive mortalities. The three damaged cages have now been secured. It is not possible to quantify the potential number of mortalities versus escapees, at this time.
My Department, in conjunction with its scientific and technical advisors, is continuing to assess the situation as a priority."
On 7 April 2014, the Department refused the request under Article 9(2)(d) of the Regulations, which is the refusal ground relating to internal communications. On 6 May 2014, the appellant applied for internal view, emphasising the public interest served by the disclosure of any accident report affecting the environment. In a decision dated 5 June 2014, the Department affirmed its original decision to refuse the request under Article 9(2)(d) and also made reference to Article 9(2)(c) of the Regulation, as discussed in greater detail below. An appeal against the Department's decision was received by my Office on 3 July 2014.
The appellant argued that the appeal concerned a matter of extreme public importance not only in light of the circumstances of the Gearhies incident, but also because of the alleged failure of the Department to carry out its regulatory functions properly in ensuring compliance with aquaculture licensing conditions aimed at preventing the escape of fish. The appellant argued from the outset, therefore, that the appeal should be prioritised. The appellant's solicitors subsequently made a formal request for priority treatment of the appeal. On 19 September 2014, my Office informed the appellant's solicitors that, following a brief examination of the case file by an Investigator, it had been determined that it was not the type of case that could be expedited.
I regret the delay that arose in dealing with this appeal, which was due to resource shortages. My Office was working on other high priority AIE and Freedom of Information (FOI) cases dating from 2012 and 2013 at the time. Moreover, this case involved a large volume of records relating to what appeared to be an ongoing investigation of a scientific and technical nature. The matter was further complicated by the fact that the investigation related to the business affairs of a private fish farm operator. 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 the circumstances, this was not the type of case that could be expedited in the manner requested by the appellant. I further note that, given the limits of my remit, it is not necessarily appropriate for my Office to give priority treatment to a case on the basis of an alleged failure of the public authority concerned to carry out its functions properly.
Nevertheless, it is not in dispute that this case involves a matter of significant public concern, and by May of this year, my Office was in a position to make progress with the review accordingly. The Investigator assigned to the case wrote to the appellant and the Department to notify them of her views on the matter and to give them an opportunity to make further submissions if they wished to do so. In the interests of natural justice, the Investigator also wrote to the fish farm operator concerned on 4 June 2015 to invite the company to make submissions for my consideration in reaching my decision.
In a message dated 10 June 2015, the company made comments identifying itself as the injured party in the matter and questioning the motives underlying the request, but it also maintained that it required sight of the records at issue in order to make an "informed decision" on the implications of releasing information relating to its private business. On 11 June 2015, the Investigator responded to the company by explaining that, as the records at issue were in the possession of this Office solely for the purposes of my review, she was not in a position to make them available to the company. She noted, however, that she had outlined the material issues affecting the interests of the company and had also explained that, if the company had any questions regarding the contents of the records at issue, it could contact the Department's Agriculture and Foreshore Management Division in Clonakilty, Co. Cork.
It subsequently transpired that that the company made a request to the Department for a copy of all of the relevant documentation and was told in return that a formal access request should be made under Freedom of Information or Data Protection legislation. On 22 June 2015, the company requested that the deadline for its submissions to this Office, which was due to expire on 25 June 2014, be extended pending the outcome of its formal access request to the Department. In a reply dated 23 June 2015, the Investigator explained that she was unable to delay the review as requested having regard to the scheme of the AIE regime, but agreed to extend the deadline by a further week, i.e. until 3 July 2015. To date, however, no further submissions have been received.
I have now completed my review under Article 12(5) of the Regulations. In carrying out my review, I have had regard to the appellant's statement of appeal and the various written and oral submissions made by the Department. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, 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.
My review in this case is concerned solely with the question of whether the Department was justified in refusing the appellant's AIE request for the preliminary reports and related documentation regarding the storm damage at Gearhies, Bantry Bay, on 1 February 2014. The Department made a very large volume of records available to my Office, but only records related to the preliminary reports that were held by or for the Department as of the date that the request was received (12 March 2014) fall within the scope of my review. The records are specified in Appendix 1 to this decision, but they include the following:
inspection reports from 2007 and July 2013 and related internal communications;
the company's reports of the incident from February 2014, including an undated assessment that evidently was on file by 20 February 2014, and also a letter to the Minister dated 25 February 2014 regarding the financial implications of the losses;
correspondence between the company and Inland Fisheries Ireland (IFI);
reports from the Engineering Division dated 12 February 2014, 20 February 2014, and 25 February 2014, respectively;
reports from the Marine Institute dated 24 February 2014 and 25 February 2014, respectively, and the documentation made available to the Marine Institute and the Department by the company for verification purposes.
As noted, 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 including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms 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)".
It is not in dispute in this case that the records at issue consist of environmental information. For the sake of clarity, however, I note that the records relate to the investigation by the Department in conjunction with the Marine Institute into the storm damage at the Gearhies fish farm site that resulted in the loss of approximately 230,000 farmed salmon. It is my understanding that the live fish remaining at the site were transported to other cages when weather conditions abated, but no remains of any mortalities were collected and disposed of; thus, one way or the other, the missing fish were absorbed into the aquatic ecosystem. In the circumstances, I consider that the requested records contain information on factors affecting or likely to affect the elements of the environment and thus qualify as environmental information under paragraph (b) of the definition. In addition, having regard to the Department's role as the aquaculture licensing authority, I consider that the records contain information on measures 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 and thus also qualify as environmental information under paragraph (c) of the definition.
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. Article 10(6) specifies that, where a request is refused under Article 9(2)(c) because it concerns material in the course of completion, the public authority is required to inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
Articles 9(2)(c) & (d)
In this case, the Department has refused the request in full on the basis of Articles 9(2)(c) and (d) of the Regulations. Article 9(2) is a discretionary provision that allows a public authority to refuse to make environmental information available where the request (c) concerns material in the course of completion, or unfinished documents or data, or (d) concerns internal communications of public authorities, taking into account the public interest served by disclosure. The Department is strongly of the view that the records in question form part of an overall, ongoing process and that all elements of the process must be treated as one. According to the Department's position, the release of any element of the overall report currently being prepared for the Minister's consideration would be premature and would unduly constrain the Minister in respect of any action which he might deem appropriate. At a meeting held with my Office at the Department's request on 18 June 2015, the Department reinforced its view and clarified that it is concerned about the perception that the premature release of information may create and the impact that this could have on any decision that the Minister may ultimately make. The Department argues that the refusal of the request serves the public interest in maintaining the integrity of the regulatory process.
Material in the course of completion
In relation to the requirements of Article 10(6) of the Regulations, I accept that the Department is the authority preparing "the material" concerned and that it does not have an estimated time for completion of the process. At the meeting, the Department stated that it is not yet in a position to make a specific recommendation to the Minister and that, at present, no proposal for action is under consideration. However, in the view of the Department, "the material" that remains in the course of completion is the overall process of examining the incident and deliberating upon what action, if any, should be taken. I do not accept that the connection between the requested information and an ongoing, seemingly indefinite deliberative process provides an adequate basis for refusal under Article 9(2)(c) of the Regulations.
As the Minister's Guidance explains in relation to Article 9(2)(c):
"Public authorities are not obliged to make available material that is incomplete or in preliminary [or] other draft form; this might apply, in particular, to reports or studies. Normally, a public authority should also be able to withhold information until the completion of a normal periodic statement/summary of the data concerned. However, public authorities should consider the possibility in particular cases of releasing interim reports or results. In general, ongoing monitoring of environmental emissions should not be treated as unfinished data - but release would seem appropriate when periodic release of information takes place."
This suggests to me that the relevant consideration under Article 9(2)(d) is the actual report or data concerned, not the overall decision-making or deliberative process to which the report or data may relate.
My view of the matter is bolstered by reference to the Aarhus Guide, which confirms that "it is clear that the expression 'in the course of completion' relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared". The Guide also explains: "Similarly, the mere status of something as a draft alone does not automatically bring it under the exception. The words 'in the course of completion' suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the 'course of completion' they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. 'In the course of completion' suggests that the document will have more work done on it within some reasonable time frame."
Accordingly, in Case CEI/08/0001, Hill of Action Group and Kildare County Council (22 Sept. 2008), available at www.ocei.gov.ie, my predecessor, Ms. Emily O'Reilly, found that Article 9(2)(c) did not apply to documents that were not being actively worked on by the public authority concerned notwithstanding a related negotiating process that remained ongoing at the time.
In this case, the preliminary reports requested are, in and of themselves, complete reports of the preliminary inspections that took place on the dates concerned. The reports are largely factual in nature, and the conclusions drawn and recommendations made follow from the factual observations recounted. The reports form, in effect, a snapshot of the views of the relevant inspectors on the dates concerned and are "preliminary" only in the sense that the findings made and conclusions drawn were subject to further investigation and verification.
Notably, although subject to further investigation and verification, the reports were considered by the Department to be sufficiently complete and reliable to form the basis for the Minister's written answer to Dáil on 4 March 2014. Moreover, I do not believe that it could credibly be suggested that the preliminary inspection reports may be subject to any further amendment of a substantive nature given that any such amendment would presumably undermine the historical integrity of the investigation to which they relate. This is not to say that the information contained in the reports is necessarily accurate; the case file reflects that the process of investigation and verification remained ongoing at the time of the request and well into the summer. Thus, interim draft reports of the overall investigation were produced in April and July 2014. However, the preliminary inspection reports were appended to each variation of the overall report without any substantive amendment even as the ongoing investigation uncovered new evidence. The case file also indicates that the investigation was nearing completion by the end of the summer and that the final report was due to be completed by the end of last August. In the circumstances, I do not accept that the reports comprise material in the course of completion or unfinished documents or data for the purposes of Article 9(2)(c) of the Regulations.
I accept that, given that the process of investigation and verification was still underway, the release of the preliminary inspection reports without the final overall report may arguably provide a misleading or confusing account of the incident concerned. However, as a general matter, I do not accept that the possibility of information being misunderstood is a good reason to refuse access to environmental information under the AIE regime. It is apparent from the face of each report that it represents the account of the relevant inspector as of the date of the report and that further inquiries, including an independent dive survey, remained to be carried out. Again, I note that the reports were considered by the Department to be sufficiently complete and reliable to form the basis for the Minister's written answer to the Dáil on 4 March 2014. In any event, it seems to me that the selective and controlled disclosure of information about a matter of such public concern may also result in the circulation of misleading, inaccurate, and otherwise confusing information.
I note that, if one were to adopt a literal interpretation of the term "internal communications", the majority of the records at issue may be regarded as potentially falling within the ambit of Article 9(2)(d). However, in its recent judgment in the case of National Asset Management Agency v Commissioner for Environmental Information IESC 51, the Supreme Court explained that, in interpreting the AIE Regulations, it is not sufficient to have regard to national law and, in particular, the normal principles of statutory interpretation in Irish law. The Regulations must be understood as implementing the provisions of Directive 2003/4/EC (and indirectly the Aarhus Convention) and, as a matter of constitutional law, ought not to go further, but not fall short of, the terms of the Directive. Accordingly, the Court found that, in order to understand the Regulations, it is necessary to understand exactly what the Directive does and means, which may also mean interpreting the provisions of the Aarhus Convention.
In relation to the relevant refusal ground under the Convention, the Aarhus Guide states: "Again, Parties may wish to clearly define 'internal communications' in their national law. In some countries, the internal communications exception is intended to protect the personal opinions of government staff. It does not usually apply to factual materials even when they are still in preliminary or draft form. Opinions or statements expressed by public authorities acting as statutory consultees during a decision-making process cannot be considered as 'internal communications'. Neither can studies commissioned by public authorities from related, but independent, entities. Moreover, once particular information has been disclosed by the public authorities to a third party, it cannot be claimed to be an 'internal communication'."
The term is not defined in the Regulations, but the Minister's Guidance provides the following advice: "This [internal communications] could include internal minutes or other communications, between officials or different public authorities, or between officials and Ministers. Public authorities should bear in mind that the use of this exception is discretionary. It should not be resorted to as a simple expedient to protect all internal communications in circumstances where it would be unreasonable to do so (see also sub-articles 10(3) and 10(4)). Normally, public authorities would not be expected to invoke this protection for information unless there are good and substantial reasons - not otherwise available in Articles 8 and 9 - for doing so."
In this case, the communications in question relate to the investigative process of determining the relevant facts of the Gearhies incident. Broadly speaking, the investigation focused on determining (1) whether any fish from the farm were lost as a result of the storm damage, (2) how many fish were lost, (3) the numbers of mortalities v. escapees, and (4) the reasons for the damage that resulted in the losses. Having regard to the Aarhus Guide, the Minister's Guidance, and the requirements of Article 10(4), I do not accept that the records at issue comprise the type of communications that are meant to be protected under Article 9(2)(d) of the Regulations.
In any event, Article 10(3) of the Regulations requires the public interest served by disclosure to be weighed against the interest served by refusal. In considering the public interest served by disclosure under AIE, it is important to have regard to the purpose of the AIE regime as reflected in Recital (1) of the Preamble to the Directive: "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." Thus, the AIE regime recognises a very strong public interest in maximising openness in relation to environmental matters so that an informed public can participate more effectively in environmental decision-making. I also consider that there is a very strong public interest in openness and accountability in relation to how the Department and Marine Institute carry out their functions under the relevant legislation governing the aquaculture industry.
The records at issue in this case relate to the investigation by the Department and the Marine Institute into the incident that resulted in the loss of some 230,000 farmed salmon. The incident is indisputably of significant public concern given the potential impact of such a loss, whether through mortalities or escapes, on the aquamarine ecosystem. The Minister has already made a statement on the matter to the Dáil in reference to the preliminary scientific and technical reports, suggesting that there were extensive mortalities. In its submissions to this Office, the Department maintains that, while a fish escape cannot be ruled out, "the available evidence has pointed towards mortalities caused by the collapse of the cages". In the circumstances, it is difficult to follow the logic of the Department's claim that the release of the preliminary reports and related documentation now, over a year since the incident occurred and almost a year since the final report was due to be completed, would somehow be premature and potentially harmful to the regulatory process. To the extent that the Department is concerned that disclosure may result in increased or renewed public scrutiny of the matter, it seems to me that this is what AIE is intended to achieve under the Directive. Moreover, the withholding of relevant information of this nature about an environmental incident of such magnitude could fuel public mistrust and suspicion. Therefore, even if I were to accept that the records fall within the ambit of Articles 9(2)(c) and/or (d), I find that the public interest served by disclosure outweighs any identifiable interest served by refusal.
Article 7(5) - information not held
As noted above, following the storm, the 20,000 live fish remaining at the Gearhies site were transported to other cages, but no remains of mortalities were collected and disposed. In addition, there are indications in the records at issue that an inspector from the Marine Institute was present at the site on the day of the live fish transport, but no contemporaneous report by the inspector is on file. Thus, despite the voluminous amount of records provided by the Department, the Investigator assigned to the case raised a search query in relation to the supporting documentation requested by the appellant.
At the meeting held on 18 June 2015, the Department confirmed that the Marine Institute's report of 24 February 2014, which was submitted by email on 25 February 2014, is the only report of the site visit also made by the Marine Institute on the day of the live fish transport. The Department also clarified that the evidence of mortalities is provided by the collapse of the cages and the absence of any evidence of escaped fish. Thus, the Department effectively claimed that it does not hold any additional relevant records falling within scope of the appellant's request.
Article 7(5) of the AIE Regulations is the relevant provision that applies where the requested information is not held by or for the public authority concerned. As a similar (though not identical) ground for refusal in relation to records ''not held'' is provided for under section 15(1)(a) of the FOI Act [formerly section 10(1)(a)], the approach of this Office in dealing with cases involving an Article 7(5) claim is guided by the experience of the Office of the Information Commissioner in relation to section 15(1)(a) cases. In essence, I must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the relevant circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply.
In this case, the Department's claim that Article 7(5) applies to any additional supporting documentation requested by the appellant is based on the claim that no such documentation existed in the first instance. Having regard to the relevant circumstances, I find no basis for disputing this claim. Accordingly, I am satisfied that Article 7(5) applies to any additional relevant records the appellant may seek that are not specified in Appendix 1 to this decision.
Other grounds for refusal?
In her letters to the parties, the Investigator also raised the possibility that additional grounds for refusal may be regarded by the company as relevant to the records affecting its interests, particularly an insurance document, the terms of a rental agreement, and a letter to the Minister regarding the financial implications of the losses. However, no arguments have been made to advance any additional grounds for refusal. In the circumstances, I am not satisfied that any additional grounds for refusal apply. Accordingly, I find that the extant records falling within the scope of the appellant's request, as specified in Appendix 1 to this decision, should be released in full.
For the sake of completeness, I note that an insurance document would normally be regarded as inherently private and confidential. However, a close examination of the insurance document in question reveals important information regarding the notification date, visibility during dive surveys that were attempted in the immediate aftermath of the storm, and the condition of the equipment. I find that there is a strong public interest in disclosure of this information in any event.
In accordance with Article 12(5) of the AIE Regulations, I have reviewed the decision of the Department in this case. I find, for the reasons set out above, that the Department was not justified in refusing the appellant's request under Articles 9(2)(c) and (d) of the Regulations. No other grounds for refusal of the records specified in Appendix 1 have been advanced. Accordingly, I annul the Department's decision and direct the release of the records specified in Appendix 1. I find that Article 7(5) applies to any additional records falling within the scope of the appellant's request.
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
Records within scope
Marine Institute File
record 2 in part: the MED report of 25 February 2014 & the emails of 24 & 25 February 2014
all records apart from the emails dated 24/3/14 & following
all records apart from the emails dated 18/3/14 & following
all records apart from the emails dated 7/4/14 & following
Vol. 3, records 1-20: in full
Vol. 4, records 21-40 in full apart from record 29 (record 29 refers to an unrelated matter)
Vol. 4, other records in part insofar as records dated on or before 12 March 2014 are included in the emails streams (e.g., 41, 43, 47, 49)
Vol. 5, records in part insofar as records dated on or before 12 March 2014 are included in the email streams (e.g., 132)
MED Tralee File
records 256-377 - with the exception of
record 255 (copy of AFMD File record 29)
records 259-261 (an unsuccessful dive survey quotation)
record 269 (refers to an unrelated matter)
the 23/7/13 inspection report relating to a farm in Castletownbere included in record 342
other records in part insofar as records dated on or before 12 March 2014 are included in the email streams (e.g., 17, 183, 184, 186, 205, 207)
Volume 2 (not scheduled):
T. O'Sullivan's report dated 25 February 2014
the inspection reports dated 24 July 2013
the Foreshore & Aquaculture Licences
email exchange between T. O'Sullivan and the Marine Institute dated 20-21 February 2014
the invoice dated 19 January 2012
Murphy's Irish Seafood's undated report of the incident and follow-up, including the live fish transport in February 2014
the documents relating to the live fish transport in February 2014 (UTSKRIFT AV TELLERESULTATER & the Waybill)
the earlier undated draft of T. O'Sullivan's report
the emails from G. O'Shea and M. Doyle dated 21 February 2014
additional emails dating from February 2014 (12/2/14, 10/2/14, 7/2/14, & 20/2/14)
the Off Shore Fish Farm Escape Report dated 24 February 2014
the "Notes of meeting in HQ of Murphy's Irish Seafood on the 19th of February 2014"
MED Clonakilty File
other records in part insofar as records dated on or before 12 March 2014 are included in the email streams (e.g., 23, 24)
other records in part insofar as records dated on or before 12 March 2014 are included in the email streams (e.g., 16, 17, 22, 23, 24, 25, 26)