Case number: CEI/17/0032

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) Case CEI/17/0032

Date of decision:  27 April 2018

CEI/17/0032.pdf

Appellant:  Francis Clauson

Public Authority:  Wexford County Council (the Council)

Issues:

1. Whether the Council’s decision to refuse the request on the ground that the information sought is not environmental information within the meaning of article 3 of the AIE Regulations was justified

2. Whether the Council’s decision to refuse the request on the ground that it concerned information in the course of completion or unfinished documents or data in accordance with article 9(2)(c) of the AIE Regulations was justified

3. If refusal was not justified, whether it would be appropriate for the Commissioner to require the Council to provide the appellant with access to environmental information      

Summary of Commissioner's Decision:  The Commissioner found that while the Council said it had refused the request, it had in fact part-granted it by providing access to most of the requested information.  He found that neither of the reasons given by the Council justified its refusal to provide access to the withheld information. He decided it would be appropriate for him to require the Council to provide the appellant with access to the withheld environmental information relating to the first part of the request and expressed his expectation that the Council will make a fresh decision on the second part. 

Right of Appeal:  A party to this appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations.   Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Background

The Council commissioned a report on noise at Gibbet Hill Wind Farm and it published the report on 17 July 2017.  Two days later, the appellant submitted a two part AIE request to the Council in which he sought:

All draft copies of the recently published Gibbet Hill Wind Farm report which the Council received from or sent to RPS or are held by RPS on behalf of the Council.

Additionally, please provide any annotations or notes or other communications surrounding its contents including inter alia minutes, emails, paper notes, post-its.  Specifically any notes or annotations which lead to changes in the text being made prior to its final publication.  In summary, I am looking for the chain of changes and edits the document received from its initial drafting by RPS and its publication which came about due to the extended review process which took place. In addition to that, I am looking for why those changes were made and the documentary evidence as to the reasons for those changes.

Although the appellant did not number the parts to his request, I will refer in this decision to first paragraph above as part 1 of the request and the second paragraph as part 2.

The Council gave notice of its decision to refuse the request on 10 August 2017.  It gave two reasons for refusal:

  1. Because it did not believe that the information sought is environmental information.
  2. Without prejudice to the first reason, because the request concerned material in the course of completion or unfinished documents or data in accordance with article 9(2)(c) of the AIE Regulations.

The Council provided a copy of the completed report to the appellant along with this decision. 

On 14 August 2017, the appellant sent a 12 page email to the Council.  In it he described in detail what he saw as the shortcomings of the Council’s decision and he requested an internal review. On 22 August 2017, the Council issued its internal review decision which affirmed the original decision.  The appellant appealed to my Office on 25 August 2017.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the Council’s internal review decision and to annul, vary or affirm that decision.  If I find that the decision was not justified for the reasons given, my role is to decide whether it would be appropriate for me to require the Council to make environmental information available to the appellant.

In conducting my review I took account of the submissions made by the appellant and the Council.  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 (the Minister’s Guidance); 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)(the Aarhus Guide). 

The public authority’s position

On whether the requested information is environmental information

In its internal review decision, the Council set out how it had ascertained that the information sought is not environmental information. In said that it did so by considering the request in the light of the definition of environmental information in article 3 of the AIE Regulations. That definition is as follows:

“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);

The Council stated that the information sought did not fall under paragraphs (a), (c), (d), (e) or (f).  In relation to paragraph (b), it acknowledged that “noise is included in this definition as a factor and said that “it is incumbent on the Council and its Consultants to release the correct, proofed and quality-assured measurement of noise releases into the environment such as at Gibbet Hill.  Draft reports on noise do not constitute noise factors”.

The Council said that “the only document of substance over which the Council can stand is the completed report.  Everything leading up to it is irrelevant and does not represent environmental information”.

In a later submission to my Office, the Council elaborated on how it had determined that the information is not environmental information.  It said that it had done so in 3 ways:

  1. On the basis of legal advice (the nature of which it did not elaborate).
  2. On the basis that the draft report could have included unsubstantiated data, errors or incorrect information and therefore was not considered environmental information. 
  3. On the basis that its “Environment Section had referenced article 7(9) of the AIE Regulations and advised that under that article where a requester is asking about analysis of sample methodologies, standards and procedures that the requester is referred to the report”. 

Article 7(9) provides that:

Where, in a request for information on factors affecting or likely to affect the environment, the applicant specifies that he or she requires information on the measurement procedures, including methods of analysis, sampling and pre-treatment of samples, used in compiling that information, the public authority shall, as Article 8(2) of the Directive requires, either make the information available to the applicant or refer the applicant to the standardised procedures.

On whether the request concerned material in the course of completion, or unfinished documents or data

Article 9(2)(c) provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. 

The Council said “it is not in the public interest to release drafts of reports, communications etc. all of which lead to a concluding report”.  It said it was “certainly not prepared to compromise the value and relevance of the work being completed for citizens by releasing incomplete reports or communications on such reports”.

Other points made by the Council

In addition to providing two reasons for refusal, the Council made a number of additional points.

  • It said that “any environmental information contained in report was publicly available to you at the date of your request”.  It did not identify the exact report to which it was referring, but it appears to have been referring to the published report.
  • It said that the “volume” of AIE requests made to it by the appellant “could constitute ‘manifestly unreasonable’ under article 9(2)(a) of the AIE Regulations and “may have provided the Council with further grounds for refusal”. 
  • It said that “article 9 provides that a public authority is not obliged to make available material that is incomplete or is in preliminary or other draft format and the [Minister’s Guidance] advise that this might apply to reports and studies”.
  • It cited article 5 and the requirement for public authorities to ensure that the environmental information which they hold is up to date, accurate and comparable.
  • It said it did not own the draft reports.

The appellant’s position 

On the Council’s decision generally

In his submission to my Office, the appellant complained that the Council’s decision was not understandable.  He said that the Council had said that his “overall request was specifically [for] any notes or annotations which lead to changes in the text being made prior to its final production”.  This caused him to question if the Council had overlooked the first part of his request which was for copies of all drafts of the report. He maintains that the part of his request which referred to notes etc. was worded clearly as a distinct second part to the request as it began with the word “additionally”.  (Notwithstanding that, the Council said that “draft reports on noise do not constitute noise factors”, which suggests that it did consider part 1 of the request.)

On whether the requested information is environmental information

In his request for internal review, the appellant complained that it is unclear how the Council decided that the information sought is not environmental information.  He submitted that a report entitled “Gibbet Hill Wind Farm Noise Monitoring Report” must be environmental information, even if it is labelled “draft”. 

On whether the request concerned material in the course of completion, or unfinished documents or data

He submitted that the Council misinterpreted sub-article 9(2)(c) of the AIE Regulations and he argued that this sub-article can never justify a refusal to provide access to information when documents have been completed.  He argued that it is clear from the legislation that sub-article 9(2)(c) was never intended to operate in the manner which the Council applied it.  In support of this, he cited article 4.2 of the AIE Directive which provides that:

Where a request is refused on the basis that it concerns material in the course of completion, the public authority shall state the name of the authority preparing the material and the estimated time needed for completion.

He cited the advice given in the Aarhus Guide at page 85.  That guidance says “the mere status of something as a draft alone does not automatically bring it under the exception… Once those documents are no longer in the course of completion they may be released, even if they are still unfinished….”  He also cited my decision in case CEI/14/0007 (which, along with all of my decisions, is available on my website www.ocei.ie) in support of this point.

The appellant cited my decision in case CEI/15/0032 and said that this decision makes it clear that “it is not only final documents which have to be released”.

He cited my predecessor’s decision in case CEI/08/0001, and said that this decision makes it clear that draft documents are completed documents in their own right.  He also cited my decision in case CEI/15/0002 in support of the same point.

He cited my decision in case CEI/13/0008 in which I said that “the fact that environmental information might be misleading is not a justification for refusal to provide access.  It would in any case be open to [the public authority] when releasing information which it feared might be misleading to provide explanatory information to help recipients of the information to understand its limitations and thereby avoid being misled”.

He complained that the Council had not shown how it had complied with sub-articles 10(3), 10(4) and 10(5).

  • Article 10(3) provides that the public authority shall consider each request on an individual basis and 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 for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
  • Article 10(5) provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.

On other the other points made by the Council

The appellant doubted the Council’s claim that it did not own the information in draft reports.

Analysis    

How to characterise the Council’s decision

It has to be understood that the focus of AIE is on access to environmental information and not on access to records per se.  Persons seeking access to specific records would be well advised to consider doing so by means of a Freedom of Information (FOI) request, since the FOI scheme deals with access to records.  Having said that, it is the case that under AIE what matters is environmental information that is held in a material form and that inevitably means information that is held in some kind of record.  So it is necessary to first consider records and then focus on the information which the records contain.  The Council refused access to particular documents, for two reasons.  However, since a great deal of the information in the draft report is also contained in the final report which the Council gave to the appellant, I would characterise the Council’s decision as a part-grant of the first part of the request and a complete refusal of the second part.  Overall, therefore, I regard it as “a part-grant decision”.

Identifying the withheld information

My staff asked the Council to provide a copy of the subject records along with a schedule listing those records and invited it to make a submission.   In response, the Council provided a submission but not a copy of records. In its submission the Council said it had “not prepared a schedule of records in this case.  It considers that the records sought are not environmental information and our views are as set out in the internal review [decision] letter”.  It added that this “letter was based on an extensive examination of the Regulations and the Council’s interpretation of them”.  My staff responded by explaining that, while it is clear that the Council believed that the records did not constitute environmental information, my Office required a copy so that I could form a view on that matter. They asked the Council if it had determined that the requested information was not environmental information by considering the contents of all relevant records held by or for it.  If that was the case, they explained, I would need a copy of the records in order to form my own view.  They asked the Council, if, on the other hand, it had formed its view without searching for, assembling and considering the contents of all relevant records held by or for it, to state in writing how it had made its determination.  The Council responded by listing three ways in which it made its determination (these are set out above under the heading “the Council’s position”).  I take this as confirmation that the Council decided that the information at issue is not environmental information without actually examining the information.  There is no prohibition on this approach, but in my experience conclusions reached in this way often fail to stand up to scrutiny on  appeal. 

Later, the Council provided my Office with a copy of what they described as “the” draft report.  It is dated 20 June 2017.  My investigator asked if there were earlier drafts and the Council assured him that there were not.  I accept the Council’s assurance on this point.

The Council did not provide my Office with copies of information which it held in relation to the second part of the request. It is clear that the Council made its decision on this part of the request without seeking out and examining the contents of relevant records. 

The Council submitted that its “technical staff” had accepted the draft report “in full as the final report”.  It said that “the information in the final report was exactly the same as the draft report, but also included” extra information on acoustic data, audio data appendices and ‘backup information’.  If that was the case it is difficult to understand why the Council did not simply give the appellant a copy of the draft report so that he could see this for himself and thereby save both the appellant and public servants considerable time and effort as well as save the taxpayer the expense arising from this appeal.  After all, if all of the information in the draft is also contained in the final report, then the Council should have seen that it was granting part 1 of the request by providing access to the final report: in effect, the Council’s position is that the draft report is replicated in the final report, albeit that further information was added to the latter.   Moreover, as there were, according to the Council, merely a few additions to the final report, the task of sourcing and providing access to records which would show why those additions were made to the final report, to meet the second part of the request, would not appear to be burdensome.   No doubt the Council would maintain that the information sought was not environmental information and therefore no presumption of disclosure applied. 

My investigator compared the draft report with the final report to see if the Council’s statements are correct.  He found no differences between the technical data in the draft and final reports.   The final report contains only a very small amount of “extra information” in newly added paragraph 2.1.  To be specific, what now appears in paragraph 2.1 of the published report does not appear in the draft report.  This seems to constitute what the Council described as “extra backup information”.  He did not identify any information on acoustic or audio data appendices that is in the final report but not in the draft report. 

He did, however, identify other notable difference between the reports and he brought those differences to my attention.  In my view, these differences do not meet the Council’s description of “extra information on acoustic data, audio data appendices and backup information”.  These differences are as follows:

  • There are differences in the wording of conclusions regarding the windfarm’s compliance with its planning conditions and Environmental Impact Statement. 
  • There are differences in how the likelihood of a noise nuisance arising is described. 

I conclude from the above considerations that the withheld information that is at issue in this review is:

  • The information that is contained in the draft report but not in the final report, in so far as such information constitutes environmental information (to meet the first part of the request) and
  • If there is any such information, any further information held by or for the Council which would show how such changes between versions arose (to meet the second part of the request), in so far as such information constitutes environmental information.

On whether refusal to provide access to the withheld information was justified on the grounds that the information is not environmental information

Part 1 of the request

I am completely satisfied that the final report constitutes environmental information.  It constitutes both information on noise (which is a factor which affects elements of the environment, as per paragraph (b) of the definition) and information on the operation of the windfarm (which is an activity affecting elements of the environment, as per paragraph (c) of the definition).  The report is a particularly clear and obvious example of a record which constitutes environmental information.  This finding is relevant because it means that when the Council gave a copy of the final report to the appellant, it gave him environmental information.

I am also completely satisfied that the draft report constitutes environmental information.  It, too, comprises information on noise (a factor which affects elements of the environment) and information on the operation of the windfarm (an activity affecting elements of the environment).

As regards the Council’s statement that “draft reports on noise do not constitute noise factors”, I am not entirely clear what that sentence means.  It seems as if it should be read as if it was worded “information in draft reports on noise does not constitute information on noise factors”.  I reject that view.  It is clear to me that the draft report on noise constitutes information on noise and noise is a factor which affects elements of the environment.

The Council stated that “the only document of substance over which the Council can stand is the completed report”.  Combined with its other statement that “the draft report could have included unsubstantiated data, errors or incorrect information and therefore was not considered environmental information” and its reference to the requirement in article 5 for public authorities to ensure that the environmental information which they hold is up to date, accurate and comparable”, I conclude that the Council misunderstood the relevance of article 5 for its obligations under article 7 to respond to AIE requests.  It is not the case that a public authority may refuse to provide access to environmental information on the basis that it cannot “stand over” the accuracy of the information.  It is perplexing that the Council maintained its position even after the appellant, in his request for internal review, provided ample grounds for the re-evaluation of that view.  It is also perplexing that the Council said that it adopted its position on the basis of legal advice.  What makes all of this especially perplexing is that, since the Council says that it adopted the draft report in full, it follows that when it made its decision on the request it had already established that it was entirely satisfied with the accuracy of the information contained in the draft report.  The only way I can make sense of the Council’s decision in this regard is to take it that the decision relied on the notion that “draft data” is a class of information that is always suspect and can, for that reason, never be environmental information, even if it is later validated (or even if it has already had been validated, as in this case).  I completely reject that view.  Indeed, if the Council was correct in this regard, it would drive a “coach and four” through the entire AIE scheme.

I fail to see how reference to article 7(9) could possibly have any bearing on the question of whether information is environmental information or not.  I am therefore mystified as to why the Council cited this as “the third way” in which it had determined this question. 

Not only am I satisfied that both the draft and final reports constitute environmental information, I am also satisfied that the text which appears in the draft but not in the final report (and which was therefore withheld from the appellant) is itself environmental information.

I considered whether the text which appears in the draft but not in the final report conveys the same environmental information and is merely worded differently from the final report. I decided that it is not merely worded differently.  It conveys a different message and is accordingly different environmental information.

Finding on part 1 of the request:  I find that the decision to refuse access to the environmental information which is found in the draft report but not in the final report and which relates to part 1 of the request, on the ground that it is not environmental information, was not justified.  I am referring specifically to the information contained in the last sentences in both paragraphs 7.1 and 7.29 of the draft report.

Part 2 of the request

I understand that the Council did not search for, assemble and consider the contents of all records which it held in relation to part 2 of the request.  It said in its internal review decision that:

Overall, your request was [for] “specifically any notes or annotations which lead to changes in the text being made prior to its final publication”.  I have found that changes do not constitute environmental information under the definition provided by article 3(1).

Once again, this was a decision which dealt with the requested information as a class of information, without regard to its actual contents. The Council has not provided my Office with copies of records which show how and why changes were made between the draft report and the final version. However, it is reasonable to suppose that such records exist and I am satisfied that if they do exist they constitute environmental information: information on whether measured noise levels complies with various standards is information on noise, even in a note.

Finding on part 2 of the request. I am satisfied that any records (of any type) held by or for the Council which would show how or why the last sentences in paragraphs 7.1 and 7.29 of the draft report came to be changed in the final report would be environmental information.  Accordingly, I find that refusal to provide access to such information on the ground that it is not environmental information was not justified.

On whether the request concerned material in the course of completion, or unfinished documents or data

The withheld environmental information was contained in a fully completed draft report.  Even when the request was first received by the Council, all work on that information had been completed, as the final report had been published.  I am therefore satisfied that the request concerned material that was no longer, when the request was received, in the course of completion.  Neither did it involve unfinished documents or data. Moreover, the Council was aware, when it made its decision to refuse the request, that it had already validated the data in the draft report and accepted it in full.  It is difficult to understand why the Council chose to refuse access to the information on this basis.  It appears that the Council relied on a highly selective reading of various parts of the AIE Regulations and/or the Minister’s Guidance, such as the sentence which it quoted from the Minister’s Guidance which says: “public authorities are not obliged to make available material that is incomplete or in preliminary or other draft form; this might apply, for example, in particular, to reports and studies”.  A complete reading of the Regulations and Directive, along with consideration of the Minister’s Guidance as a whole, and the Aarhus Guide, would have shown the Council the error of its interpretative approach.

Finding.  When the Council made its decision the AIE request no longer concerned material in the course of completion, or unfinished documents or data.  Accordingly, I find that refusal on the ground of article 9(2)(c) was not justified.

On other points made by the Council

There were just two reasons for refusal and I have dealt with them above.  The Council raised other issues which, although not given as reasons for refusal, merit a response here.

Ownership The Council submitted that it did not own the draft report.  Whether this is or is not the case, ownership is irrelevant in this context.  A public authority’s obligations apply to environmental information which it holds (or which is held elsewhere on its behalf).  Obligations are not limited to information which the public authority owns.

The Council did not make a submission on intellectual property per se.  However, both the draft report and the final report contain a paragraph which asserts that the copyright to each report is held by the contractor which prepared the reports.  Both reports contain the words:

This report has been prepared for the exclusive use of our client and unless otherwise agreed in writing by RPS Group Limited no other party may use, make use of or rely on the contents of the this report.

I find this surprising: it purports to say that a report paid for with public money may only be used by citizens with the written permission of the company that was paid to produce it. 

The Council’s website (on its “Wind Farms noise report” page) contains information about the noise monitoring project and this page contains a link to the final report.  The page also says:

All of the information featured on this website and the raw data is copyright of Wexford County Council unless otherwise indicated. Wexford County Council complies with the regulations on the Re-use of Public Sector Information, and we encourage the re-use of the information that we produce. You may re-use the information on this website and the raw data free of charge in any format. 

(with emphasis added)

“Otherwise” is indicated in the final report on Gibbet Hill wind farm, as published on the Council’s website, by the note which declares that the copyright for that report lies with RPS Group Limited and which states that no other party may make use of or rely on the contents of the this report without the written permission of the Council.

An entirely different picture is presented, however, by the Contract for Services which led to the preparation of the report.  This shows, at section 7, that the parties agreed from the outset that all of the intellectual property rights associated with the noise monitoring reports “vest in the client”, i.e. the Council.  Despite this, the Council published the final report without removing RPS Group Limited’s notice informing anyone who might wish to use the report that they could only do so with the written permission of the company. 

Notwithstanding this strange set of circumstances, I am satisfied from the Contract that the intellectual property rights belonged at all relevant times to the Council.  Accordingly, I am satisfied that “ownership” of the withheld information was not a barrier to it being given to the appellant. 

Manifestly unreasonable

The Council told the appellant that the “volume” of AIE requests made to it by the appellant “could constitute ‘manifestly unreasonable’ under article 9(2)(a) of the AIE Regulations and “may have provided the Council with further grounds for refusal”.  If this had been cited as a reason for refusal in this instance, which it was not, it would have been the first time, to my knowledge, that such a reason fell to be considered on appeal to my Office. 

Article 9(2)(a) provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought.  There is no doubt that a request may be refused if it is manifestly unreasonable, but I have not yet had to make a determination as to whether a request may be refused on the ground that, while the request is not manifestly unreasonable on its own terms, it is manifestly unreasonable on account of other requests made by the same applicant.   I do not have to make a determination on this point here and I will not do so. 

Whether it would be appropriate for me to require the Council to make environmental information available to the appellant

Part 1 of the request

Having considered all of the Council’s arguments against disclosure of information captured by part 1 of the request, I am satisfied that it would be appropriate for me to require the Council to make the withheld environmental information relevant to this part available to the appellant. 

Part 2 of the request

I am satisfied that if the Council holds information meeting this part of the request it would constitute environmental information.  However, the Council has not stated whether it holds such information and it would not be appropriate for me to require the Council to do something without knowing that it could be done.

Decision

Having reviewed the Council’s decision, I find that its refusal to provide access to all of the environmental information which it held in relation to the request was not justified by the reasons given.  Under the power given to me by article 12(5), I annul that decision and require the Council to make the information contained in the last sentences in both paragraphs 7.1 and 7.29 of the draft report available to the appellant.

I expect the Council to notify the appellant of a fresh decision on part 2 of the request, i.e. on   information held by or for the Council which would show how or why the last sentences in paragraphs 7.1 and 7.29 of the draft report came to be changed in the final report.

For the avoidance of doubt, I expect the Council to do the following:

  1. If it decides to appeal this decision to the High Court, to immediately inform the appellant of that fact.
  2. If it decides not to appeal this decision to the High Court, to immediately inform the appellant of the date by which he can expect to receive a fresh decision and be informed of a right to request an internal review. Such a date should be within one month of the Council’s decision not to appeal, unless the Council extends time in accordance with article 7(2)(b) of the AIE Regulations.

Comment

The Council’s treatment of this AIE request displayed a significant failure to appreciate how a public authority should endeavour to comply with both the spirit and the letter of the AIE legislative scheme. I recommend that the Council should provide additional training and support to assist those members of its staff who are involved, or likely to become involved, in making AIE decisions on its behalf.

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