Case number: CEI/16/0003
Decision of the Commissioner for Environmental Information
on an appeal made under article 12(5) of the European Communities
(Access to Information on the Environment) Regulations 2007 to 2014
(the AIE Regulations)
The EPA's website says that Unconventional Gas Exploration and Extraction (UGEE) involves the hydraulic fracturing (fracking) of low permeability rock to permit the extraction of natural gas on a commercial scale. It says that the EPA awarded a contract for the carrying out of a 24-month research programme looking at the potential impacts on the environment and human health from UGEE projects and operations.
On 10 November 2015, the appellant wrote to the EPA citing the AIE Regulations and asked for the following:
A list of all correspondence/documentation/pieces of paper generated, and all information held by the EPA, that in any and all ways relate to environmental information communication between the Irish Environmental Protection Agency and a company called "Achilles Procurement Services Limited" (Achilles) with regard to research and the like considering Unconventional Gas Exploration and Extraction in Ireland.
Note: the words "a list of" are shown here as they appeared (i.e. emphasised in bold) in the original request. The appellant also added, for clarity, that the terms 'environmental information' and 'held by' were used (in his request) as defined in article 3 of the AIE Regulations.
The EPA replied on 7 December 2016, refusing the request. The appellant sought an internal review on 9 December 2015, and the EPA once more refused the request. The appellant appealed to this Office on 11 January 2016.
Under article 12(5) of the AIE Regulations, my role is to review the EPA's internal review decision and to affirm, annul or vary it.
In conducting my review I took account of the submissions made by the appellant and by the EPA. I had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations; Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention -- An Implementation Guide (Second edition, June 2014).
Article 3(1) of the AIE Regulations provides that "environmental information" means:
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, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);
Article 7(5) provides that, where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.
The EPA acknowledged that it corresponds with Achilles in relation to various aspects of procurement. It submitted that:
"Such correspondence or indeed the activities carried out by Achilles do not constitute 'activities ... likely to affect the elements and factors' (in the definition of environmental information) as put forward" by the appellant.
The EPA refused the request because it considered that the information sought was not within the scope of the AIE Regulations, having regard to the definition of environmental information set out in those Regulations. Accordingly, the EPA advised the appellant of his right to seek the same information under the Freedom of Information Act.
In a submission to my Office, the EPA went further and stated that it did not hold the requested list.
In his request for an internal review, the appellant said that the information which he asked for:
"Pertains to activities ... likely to affect the state of the elements of the environment, and also affect noise, waste, emissions and discharges into the environment, since the UGEE research programme explicitly provides for drilling and other groundworks associated with drilling."
He argued that, as a broader level, the information sought is part of administrative measures initiated by Government, which may lead to policies and programmes likely to affect the environment. He also argued that UGEE activities, by definition, affect the state of the elements of the environment, and that therefore any activities carried out by, at the request of, or with the participation of the EPA that is part of UGEE research or that is a precursor of or a precondition of UGEE activities is in the scope of the AIE Regulations.
The appellant submitted that the EPA's assertion that the information which he sought was not environmental information is fallacious. He argued that there is no basis for a claim that "procurement services" are not part of "administrative measures" that form part of the
definition of environmental information. He argued that the UGEE research programme is an environmental research programme which is looking at emissions into air/water/soil and effects of these on the environment. Therefore, he argued, any activities associated with it, including procurement activities, fall under the definitions in the AIE Regulations.
In his appeal to this Office, the appellant emphasised that:
"I have asked for a list of environmental information, not the information itself. If the EPA is saying that there is no environmental information involving Achilles, then that should be the reason for the rejection and they should state that. Since they did not state that, then the inference (is) that environmental information involving Achilles does indeed exist and they should therefore provide a list of it."
An "AIE request" is a special kind of request for information. It must, in all cases, be a request for "environmental information" made pursuant to the AIE Regulations.
In this case, the EPA took the view that the requested information was not within the scope of the AIE Regulations, because it was not environmental information.
Since the request was clearly intended to be an AIE request, it should have been understood as a request for any and all environmental information contained in the list specified in the request.
In the experience of this Office, it is rarely the case that it can be said that requested information is not environmental information, or does not contain environmental information, without first identifying the information at issue (if, in fact, it is held) and examining its contents.
I am satisfied that the request in this case was a request for environmental information. The real issues for this review are:
1. Whether the particular list which was specified by the appellant was held by or for the EPA when the request was made.
2. If it was, whether it contains environmental information (by which I mean: whether the list itself contains environmental information, not whether one or more listed records might, if obtained and examined, be found to contain environmental information.)
The EPA assured me in writing that, following internal enquiries, it has established that it did not hold such a list. I accept that assurance.
There is no obligation on a public authority to create information in a material form for the purpose of responding to an AIE request.
I find that the request was a request for environmental information within the scope of the AIE Regulations. I also find that the requested information was not held by or for the EPA.
I hereby vary the EPA's decision. I find that refusal was not justified by the reason given. I find that refusal was justified on the ground of article 7(5) of the AIE Regulations, because the requested information was not held by or for the EPA.
Article 5(1)(d) requires public authorities to:
maintain registers or lists of environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found.
The remit of my Office does not extend to investigating or deciding whether public authorities meet their obligations under article 5, and I have not done so in this case. However, I think it would be appropriate for me to comment on the relationship between article 5(1)(d) and AIE requests, as I understand it.
There is no requirement for a member of the public to make an AIE request (i.e. a request pursuant to article 6) in order to ask a public authority for information about where its registers or lists of environmental information can be found. A request for access to such registers or lists would not have to conform to the technical requirements of an AIE request. In particular, such a request would not have to be a request for "environmental information". In contrast, an AIE request must always be a request for environmental information. I acknowledge that this is a subtle point, but it is an important point.
I would encourage those interested in seeking access to environmental information to consider first asking public authorities for details of where they can find registers or lists of environmental information held pursuant to article 5. This could lead to the public subsequently making more focussed AIE requests for specific information which is actually held. Focussed requests are always preferable to general "trawling" requests. The latter can needlessly burden public authorities and over-complicate the processing of AIE requests and appeals.
Article 6(1)(d) provides that (AIE) requests shall: "state, in terms that are as specific as possible, the environmental information that is the subject of the request." In the current case, the request was somewhat specific, since it asked for a single list. However, it was less than specific in its references to environmental information. Under the AIE regime there is no right of access to information which is merely related to environmental information communication (as worded in this request): the right of access extends only to information which actually is environmental information, and then only after consideration of articles 8, 9 and 10.
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