Whether the Department was justified in refusing access to "suitably redacted" record sheets for 15 particular "GLAS" applications involving the laying of hedgerows
17 October 2018
In a request initially made on 1 May 2018 and modified on 9 May 2018, the appellant sought access to "suitably redacted" record sheets for 15 particular applications made under the Green, Low-Carbon, Agri-Environment Scheme (GLAS). The 15 GLAS applications were identified in reference to information provided by the Department in response to a previous AIE request for access to details of certain GLAS applications involving hedge coppicing and laying measures. The appellant specified that he sought the following information from the record sheets for the laying of hedgerows: date(s) and length(s) layed (m), and maintenance thereafter. In a decision dated 23 May 2018, the Department refused the request under article 8(a)(i) of the Regulations on the basis that disclosure of the information would adversely affect the confidentiality of personal information. It also stated, however, that it did not hold the requested record sheets, as they were in the possession of the individual GLAS applicants concerned.
On 24 May 2018, the appellant applied for an internal review of the Department's decision. He argued that suitably redacted record sheets would not contain either confidential or personal information. He also argued that the record sheets are held "for" the Department and that the Department was therefore required "to source a copy of the records and provide them under this request". In addition, he set out his reasons for considering that the public interest favoured disclosure of the requested information.
On 11 June 2018, the Department affirmed its original decision. Although the Department suggested that it would not be feasible for it to collect the relevant record sheets and then manually redact the personal information contained therein, the Department found that the record sheets are not Department records and that they are not held on its behalf. The Department stated: "The records requested are created and held by individual farmers as an on farm record of the work undertaken on their GLAS actions." The Department therefore ultimately refused the request under article 7(5) of the Regulations. The appellant appealed to this Office against the Department's decision on 14 June 2018.
I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the Department and the appellant. 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.
Scope of the Review
My review in this case is concerned solely with the question of whether the Department was justified in refusing access to the record sheets for the 15 GLAS applications identified in the appellant's request. For the sake of clarity, I note that it is not within my remit to adjudicate on how public authorities carry out their functions generally, including with respect to their records management practices. This means that I have no jurisdiction to require the Department to obtain records that are not already held by or for it or otherwise to determine whether it is compliant with its obligations under article 5 of the Regulations.
Analysis and Findings
Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested information is held by or for the public authority concerned. Article 3 of the Regulations specifies that "'environmental information held by a public authority' means environmental information that is physically held by a natural or legal person on behalf of that authority". What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
The Department's position
The Department's position is that, under the terms and conditions of GLAS, participants are required to maintain records of delivery of the actions undertaken in accordance with the scheme contract. Participants are not required to submit the sheets to the Department, but they form part of the inspection process and must be available in the event of an inspection. Under the rules governing the scheme, on-the-spot inspections are carried out on 5% of the participants each year. According to the Department's internal review decision, inspectors do not take a copy of the record sheet during an inspection; rather, if there is an issue, it is documented in the inspector's report. However, when questioned further by this Office about the inspection process, the Department agreed that the inspector may take a copy of the relevant record sheets in the event of a penalty being applied in relation to the record keeping. Otherwise, according to the Department, "[t]hese records are held by the participant for their own use as evidence that they have undertaken their commitments in line with scheme requirements". The Department also confirmed that none of the 15 GLAS applications referred to in the appellant's request has had a penalty imposed in relation to the record-keeping requirements.
The appellant's position
The appellant maintains that the record sheets he seeks form part of the contract between the Department and the individual farmers and should therefore be regarded as Departmental records that are held for or on behalf of the Department. He considers that the Department is obliged to source a copy of the records and make them available in response to his request. He also suggests that record sheets should be required to be submitted to the Department once they are completed:
"Since GLAS works are ongoing throughout the year in question it is reasonable that the Record Sheets are maintained on the farm so that they can be updated as required (although it also would be possible to maintain up-to-date records using an online system). However, once the year ends and the declaration is signed, the records are complete and there is no reason why a copy could or should not be submitted to DAFM as part of the record keeping, monitoring and evaluation of the Scheme. Whilst appreciating that the grounds for refusal do not permit for a public interest test, I contend that it would be in the public interest that this should be done."
In inviting submissions from the appellant, my Office referred the appellant to Case CEI/13/0001
(Friends of the Irish Environment and the Department of Agriculture, Food and the Marine), in which I found that certain records that were created and held by individual fin fish operators were not held for the Department. However, the appellant argues that this case is distinguishable because of the contractual relationship between the Department and each individual farmer participating in the scheme. In his view, the relevant statutory obligations under EU law apply to the Department, and the GLAS participants create the records as a contractual requirement in order to meet these obligations on behalf of the Department.
GLAS is a scheme designed under the Common Agricultural Policy (CAP) that provides funding to farmers who undertake, on a voluntary basis, to carry out activities that promote biodiversity, protect water quality, and help combat climate change. It is intended to achieve the objectives of Articles 28 and 30 of Regulation (EU) No. 1305/2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD). The scheme involves a contract between the Department and participants, because in exchange for payment (generally up to €5,000 per annum), participants commit to deliver on the agreed environmental actions for a minimum period of five years. This does not necessarily mean, however, that the record sheets maintained by participants to document their delivery of these actions are held for or on behalf of the Department.
The payments made under the scheme are not for the purpose of acquiring any right to hold the record sheets but rather for the delivery of the actions that the record sheets are meant to document. The record sheets are held by and for the participants concerned as a core requirement of the scheme and as evidence of compliance in the event of an inspection. The terms and conditions specify that the Minister has a right of entry to carry out inspections at reasonable times of any land, premises, plant, equipment, livestock and records of applicants/participants, but a right of inspection is not the same thing as legal control over any of these matters, including the records. The record sheet form specifies that the participant is required to retain all record sheets at all times throughout the period of the contract, but neither it nor the terms and conditions indicate that the participant is required to make a copy of the record sheets available to the Department upon demand.
I note that the appellant refers to Recital 35 of Commission Implementing Regulation (EU) No 809/2014, which states that Member States should keep records of information relating to the reason for the selection for the on-the-spot checks carried out, but this does not appear to be relevant to the record sheets at issue in this case. Recital 41 and other provisions of the Regulation (e.g., Article 53) state, on the other hand, that details of the checks should be recorded in a control report, as the Department indicated on internal review. I note that records or other supporting documentation may be submitted by participants upon request in the event of non-compliance in order to secure release of payments and/or avoid a penalty. Thus, a copy of the record sheets may in fact be provided to the Department in the event of an issue arising with the record-keeping that may result in penalties. However, I see nothing in the terms and conditions or the governing Regulations to suggest that the Department has a legal entitlement to demand a copy of the record sheets simply because of the contractual relationship that exists.
In Case CEI/13/0001, I considered whether records that were maintained by individual operators in order to comply with relevant EU and national statutory requirements "were held for a public authority". I concluded that they were not. In reaching this conclusion, I observed: "The consequences of a finding in this appeal that the information sought is held for the public authority and therefore, subject to the Regulations, would lead to an unreasonable situation whereby any information required to be held in order to comply with statutory obligations could be the subject of an AIE request to a public authority even though the information itself was held by various private entities." In this case, the record sheets sought by the appellant are held by private individuals who are are availing of what is in effect an incentive scheme aimed at promoting rural development through agricultural activities that "make a positive contribution to the environment and climate" (Article 28(1) of EU Regulation 1305/2013 refers). The appellant emphasises the contractual relationship between the Department and the individual farmers participating in the scheme, but he has not pointed to any contract term that gives the Department any entitlement to the record sheets upon demand other than by way of inspection. I do not accept that the contractual requirement to maintain the records under the terms and conditions of the scheme means that the records should be regarded as being held for the Department. In the circumstances, I find no basis for disputing the Department's position that article 7(5) applies.
In accordance with article 12(5) of the AIE Regulations, I have reviewed the decision of the Department in this case. I find that Department's decision to refuse the appellant's request for access to the record sheets sought was justified under article 7(5) of the Regulations. I affirm the Department's decision accordingly.
Appeal to the High Court
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Commissioner for Environmental Information