Whether the EPA was justified in refusing access to certain additional environmental information relating to a memo dated 13 September 2012 on the basis that no further relevant environmental information was held by or for it
8 March 2021
1. This case has its background in a number of legal actions involving the appellant, the EPA, and the Director of the Public Prosecutions (the DPP).
2. On the 27 January 2020, the appellant requested, from the EPA, all documentation relating to a memo submitted by a named staff member to the board of directors of the EPA. He outlined that the memo in question indicated that the DPP and the State Solicitor had been contacted and informed that documents, which he had sought by way of a voluntary discovery request to the EPA on 27 July 2012, “may have an impact on the DPP’s case” against him.
3. On 29 January 2020, the EPA wrote to the appellant and informed him that under article 6(1)(d) of the AIE Regulations, a request must state, in terms that are as specific as possible, the environmental information that is the subject of the request. It stated that his request was formulated in too general a manner and, as such, it ran the risk of being be refused under article 9(2)(b). It asked the appellant to confirm the dates of the memo and voluntary discovery request concerned and for clearer details regarding the information sought.
4. On 29 January 2020, the appellant refined his original request. He confirmed that the memo was dated 13 September 2012 (the Memo) and the date of the voluntary discovery request was 27 July 2012. He stated that the documents sought fell into seven specific categories:
1. The EPA assessment of the documents he sought on 27 July 2012 including the conclusion that, “Some of the documents sought may have an impact on the DPP’s case against [him]…”
2. Communications relating to that assessment and conclusion.
3. Communications relating to the decision to so inform the DPP and the State Solicitor of that assessment and conclusion.
4. Documents and communications relating to that informing of the DPP and the State Solicitor.
5. Communications and documents relating to the provision of the Memo to the board of directors of the EPA.
6. Communications and documents arising from the provision of that Memo
7. Drafts relating to the above six categories.
5. On 28 February 2020, the EPA informed the appellant that, due to the complexity of the environmental information requested, it required an extension of one month in accordance with article 7(2)(b) of the AIE Regulations, in order to make its decision. Subsequently, the EPA notified the appellant that it had been unable to make a decision within the extended timeframe. On 4 April 2020, the appellant sought an internal review of the deemed refusal of his request.
6. In a decision dated 5 May 2020, the EPA identified 39 records as relevant to the request, one comprising internal EPA correspondence (Record 26), and the remainder comprising either correspondence between the EPA and barristers or solicitors, or correspondence between barristers and solicitors. It refused access to all 39 records under article 9(1)(b) of the AIE Regulations on the ground that disclosure of the withheld information would adversely affect the course of justice.
7. The appellant appealed to my Office on 12 May 2020 on the basis that the EPA had incorrectly applied article 9(1)(b) to Record 26 and that it had not identified all the environmental information he had requested.
8. During the course of this review, the EPA administratively released Record 26 to the appellant.
9. I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the EPA. In addition, I have 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’).
Scope of Review
10. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
11. As referred to above, the appellant, in his correspondence to the EPA dated 29 January 2020, refined his original request, stating that the documents sought in relation to the Memo fell into seven specific categories. In his appeal to my Office, he outlined his view that the EPA had not identified all environmental information relevant to his request, including records from the period before the Memo was provided to the board of directors. By way of example, he stated:
“…we know that there exists my letter seeking disclosure, arising from that there would have been internal emails seeking to collate the documents I sought and, more than likely, some discussion and forwarding of documents. At some stage, some individual assessed the documents I has [sic] sought and concluded that if I was provided with them all it would likely have a negative effect on the case the EPA were trying to bring against me. At that stage, the solicitors would become involved. I am not seeking the documents from and to solicitors and barristers in this process.”
12. In its submissions to my Office, the EPA stated that internal emails collating the documents for discovery did not come within the scope of the appellant’s refined request. My investigating officer outlined the EPA’s position to the appellant on 5 February 2021. In response, the appellant contended that such emails came within the second category of information sought, as no assessment or conclusion could have been reached without emails requesting and providing the documents.
13. In my view, the language of the refined request links the first and second categories of the information sought. On this basis, it is logical for these categories to be read together. In doing so and having considered the wording of the remaining categories, I am satisfied that it was reasonable for the EPA to conclude that internal emails collating documents for discovery did not fall within the scope of the appellant’s refined request. Furthermore, while I note that Record 26 was administratively released to the appellant, having examined its content I am satisfied that both it and the appellant’s letter dated 27 July 2012 also fall outside the scope of the appellant’s refined request.
14. It is open to the appellant to make a separate request to the EPA for emails collating the documents for discovery and his letter of 27 July 2012, should he wish to do so.
15. Accordingly, the scope of this review is concerned solely with whether the EPA was justified in refusing access to further information relating to the Memo coming within the seven categories of the appellant’s refined request other than documents between the EPA and legal representatives on the basis that no such environmental information is held by or for the EPA.
Analysis and Findings
16. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. My approach to dealing with cases where a public authority has effectively refused a request under article 7(5) is that I must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply. It is not normally my function to search for environmental information.
17. In its submissions to my Office, the EPA explained that the Memo was an update to its board of directors on the legal actions relating to an identified EPA licensed facility and provided details of its record storage practices and the searches conducted in response to the appellant’s request. As my Office has already provided the appellant with those details, I do not propose to repeat them in full here. In short, it described the electronic and physical searches carried out and outlined its view that, given the timeframe involved, it was probable that draft records had been destroyed.
18. The EPA noted that the searches undertaken were focused on the Office of Environmental Enforcement (OEE), as it is responsible for enforcing and dealing with EPA licensed sites. It stated that at the time of the appellant’s request, information relating to each licensed site was stored in individual hard copy folders and in separate electronic folders. It also stated that there were 14 cabinets of records held off-site relating to the licensed facility at issue, due to the legal actions concerning it.
19. The EPA outlined that relevant staff were consulted and that searches of both the hard copy files and the electronic folders set up to store enforcement and legal information on the licensed facility were undertaken. It stated that the staff members carried out the searches of the relevant electronic folders and their emails using key words, including the name of the appellant, partial names of the licensed facility and its location, registration numbers, and “memo”. It noted that partial words were used to ensure that any spelling of the words would be picked up. It also explained that, given the various legal actions concerning the relevant licensed facility, the associated voluntary discovery requests, and previous AIE requests, staff had set up electronic folders to keep their records in one location. It stated that these electronic folders and a relevant database were also searched using the date of the Memo. It noted that the period close to that date was also checked.
20. In referring to the discovery request submitted by the appellant, the EPA noted that all relevant information relating to the legal proceedings concerned had been collected from all relevant EPA staff and was held offsite in 14 filing cabinets. It stated that it employed one of the barristers who had originally been involved in collating and assessing the information for the discovery request to carry out searches of the offsite information. It noted that, as the barrister had previously catalogued the contents of each cabinet, they knew which folders needed to be searched. It stated that the search and examination of the offsite information took place over four days.
21. The EPA stated that the Memo was written by the then manager of the OEE Legal Unit, who is now on career break, and that it would have been approved by her then Programme Manager, who is now retired. It stated that it asked its IT department to carry out searches of their emails, but that the email accounts no longer exist.
22. In his correspondence to my Office, the appellant contended that the EPA should hold further information from the period prior the Memo being submitted to the board of directors. In detailing the processes involved in the preparation of the Memo, the EPA explained that the assessment of the documents for the discovery request was carried out by the manager of the OEE Legal Unit and other barristers and solicitors who were contracted by the EPA for that purpose. It stated that they discussed, assessed, and made decisions on the documents as they proceeded, rather than making notes. It further explained that the documents were considered in a number of emails prior to the Memo being submitted to the board of directors and that these emails were identified and included on the schedule of records provided to the appellant with its decision dated 5 May 2020 (Records 1 – 7).
23. The general thrust of the EPA’s position is that it holds no further relevant environmental information. I wish to emphasise that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. My role concerns reviewing appeals of requests for access to environmental information, which is held by or for the relevant public authority and no more than that.
24. Having considered the details of the searches undertaken by the EPA and of its processes, I am satisfied that the EPA has taken adequate steps to identify and locate all relevant environmental held by it. Accordingly, I find that article 7(5) of the AIE Regulations applies.
25. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the EPA’s decision to refuse access to additional relevant environmental information relating to the Memo dated 13 September 2012 under article 7(5) of the AIE Regulations.
Appeal to the High Court
26. 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