Case number: OCE-103791-Q7Z1F9

Whether the Council was justified in refusing access to the information requested on the basis that it was not environmental information

 

OCE-103791-Q7Z1F9

 

19 July 2021

 

 

Background

 
1. On 3 June 2020, the appellant requested, in respect of a wall and void adjoining the appellant’s property, all reports of the Council’s technician between specified dates and all reports of the Council’s external consultants between specified dates.
 
2. On 24 June 2020 the Council decided to refuse access to the information on the basis that “the reports in question do not include environmental information”. This was communicated to the appellant by email on 30 June 2020. 
 
3. On 28 July 2020, the appellant requested an internal review of the decision. 
 
4. On 20 August 2020, the Council affirmed the original decision to refuse access to the information on the basis that “the reports requested do not contain information on the environment”. The Council notified the appellant that an appeal could be made “to the Information Commissioner no later than 6 months from the date of this notification”.
 
5. The appellant brought this appeal to my Office on 15 February 2021. In light of the erroneous information provided to the appellant by the Council in respect of the timeframe for appeal, I exercised my power under article 12(4)(b) of the AIE Regulations to extend the time for initiating an appeal.  
 
6. 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 appellant and by the Council.  I have also examined the contents of the records at issue. In addition, I have had regard to:
 
a. the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations;
 
b. Directive 2003/4/EC, upon which the AIE Regulations are based;
 
c. United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
 
d. The Aarhus Convention: An Implementation Guide (Second edition, June 2014).  
 
7. I have taken account of the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017] IECA 223 (“Minch”), Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83 (“Redmond”), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (“ESB”) and Right to Know CLG v. Commissioner for Envirnmental Information and Raidio Teilifís Éireann [2021] IEHC 353 (“RTÉ”) and the decisions of the European Court of Justice in Case C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen (“Glawischnig”) and C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (“Mecklenburg”). I have also had regard to the judgment of the Court of Appeal of England and Wales that is referred to in the latter three Irish judgments, Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (“Henney”).
 
8. What follows does not comment or make findings on each and every argument advanced but I have considered all materials submitted in the course of the investigation.
 
 

Preliminary matters

 
9. Under the AIE Regulations, public authorities may charge a fee where environmental information is made available to the appellant. Although Article 6(1) of the Directive permits Member States to provide for an inexpensive fee to be charged for internal review applications, Ireland has not implemented that provision. As such, there is no provision in the AIE Regulations empowering public authorities to charge a fee for internal review. 
 
10. The Council’s website states that there is no fee for an ‘appeal’ (i.e. an internal review). Nonetheless, in its initial decision the Council advised the appellant that she could appeal the decision to the Council, subject to a fee of €30, or €10 for medical card holders. The Council states that no fee was in fact paid in respect of the AIE internal review. In her application for an internal review, the appellant stated “I enclose payment in the sum of €30 for processing the review”. When contacted by my investigator, the appellant stated that she is confident that she would have presented payment, but she cannot recall whether or not the Council took the payment in respect of the AIE internal review. However, the appellant stated that she has not raised the application fee as an issue in her appeal and is satisfied to maintain that position. 
 
11. In the circumstances, I do not make any factual finding about whether a fee was in fact taken by the Council. However, it is plain that the Council provided incorrect information to the appellant about the requirement for a fee, a practice which has the potential to deter applicants from seeking an internal review. It seems to me that this error, and the error mentioned in paragraph 4 above regarding the timeframe for appeal to my Office, occurred as a result of the Council using a letter template which was intended for responses to freedom of information requests. As the Council is aware, the regimes are distinct. I recommend that the Council review any template letters that it uses to respond to AIE requests to ensure compliance with the AIE Regulations. 
 
 

Scope of Review

 
12. 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.
 
13. The Department refused the appellant's request for information on the basis that the information was not environmental information. My powers as Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. Accordingly, the question before me is whether the information at issue falls within the definition of “environmental information” in article 3(1) of the AIE Regulations.
 
 

Information in scope of the request

 
14. The appellant’s request relates to the construction of a wall on property adjoining the appellant’s property, which created a void between that constructed wall and the existing wall on the appellant’s property. Construction was commenced without planning permission on 7 April 2018. A complaint was made to the Council on 13 April 2018, resulting in an unauthorised development investigation by the Council. A further complaint was made on 2 May 2018 alleging that the wall was a dangerous structure. The site was inspected on behalf of the Council, which concluded that the wall was not dangerous. The investigation was closed. A planning application for retention of the wall was lodged on 12 June 2018. Planning permission was granted. This grant was appealed to An Bord Pleanála, which granted permission on 10 January 2019. 
 
15. On foot of another complaint about the wall on 20 June 2019, the Council commenced a further investigation. As part of that further investigation, the Council’s technician compiled a report for the Council on 19 July 2019. Although this report states in its heading that it is in “draft” form, I am assured by the Council that it is the final draft. The Council also commissioned an inspection by external consultants, who compiled a report for the Council on 15 October 2019. The Council’s position is that these two reports are the only information falling within the scope of the appellant’s request. 
 
16. During the course of my Office’s review, the Council provided my investigator with a summary of its investigation into whether the wall was a dangerous structure. That summary noted that the external consultants were requested to provide, and did provide on 11 November 2019, clarification of their report to the Council. The Council’s position is that this clarification is not a “report” by the external consultants, so does not fall within the scope of the request. Having examined the content of the clarification, my view is that it contains clarification and expansion on the content of the 15 October report and as such must be considered to be part and parcel of that report, viewed as a whole. Accordingly, I find that the clarification on 11 November 2019 falls within the scope of the appellant’s request. 
 
17. As provided in regulation 12(2) of the AIE Regulations, I also hold the office of Information Commissioner. In my capacity as Information Commissioner, my Office conducted a review in respect of a request by the appellant for access to the same information under the Freedom of Information Act 2014. During the course of that review, the Council identified a further record falling within the scope of the freedom of information request, namely a report of the Council’s technician dated 2 March 2020, which was provided to my Office. The existence of that record was noted in the Council’s summary of its investigation. Consistent with my Senior Investigator’s finding in the review relating to the freedom of information request, I find that the report of 2 March 2020 also falls within the scope of the appellant’s AIE request.
 
 

Analysis and findings  

 
18. The question before me is whether the information at issue falls within the definition of “environmental information” in article 3(1) of the AIE Regulations. In carrying out my review, I have examined the content of the records at issue. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the records and the extent to which I can describe certain matters in my analysis is limited.
 
19. For the reasons given below, I find that the requested information is environmental information, within the meaning of paragraph (c) of the definition. 
 
Approach to the definition of environmental information
 
20. 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);”.
 
21. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43). 
 
 
Positions of the parties
 
22. The Council’s position is that the information is not environmental information. The Council submits that the documents sought are technical reports on an alleged dangerous wall / structure. The Council submits that the investigation is not capable of being a measure or activity within the meaning of paragraph (c) of the definition and that the investigation is not affecting, likely to affect or designed to protect the environment. The Council notes that the wall has the benefit of planning permission from both the planning authority and An Bord Pleanála and that the Council’s investigation has concluded that the wall is not a dangerous structure. The Council submits that, in light of its conclusion that the wall is not dangerous, any impact that its investigation could have on the environment is hypothetical.
 
23. The appellant submits that the information is environmental information because it concerns a safety issue arising from the state of the elements of the environment including land and built structures. The appellant submits that the reports relate to a wall in a coastal location and that the wall poses imminent danger to human health and safety due to the likely impact of elements of the environment, in particular windloading. The appellant submits that the information relates to a dangerous void on land. The appellant also refers to the obligations of a public authority to disseminate information under article 5(3) of the AIE Regulations in the event of an imminent threat to human health or the environment.
 
 
Identification of a measure or activity
 
24. Paragraph (c) requires the identification of a relevant measure or activity, which the information at issue is “on”. Without disclosing the contents of the four records identified above as falling within the scope of the request, I can confirm that they form part of the Council’s investigation into whether the wall was a dangerous structure.
 
25. I note that information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). While each of the requested reports might be considered a measure or activity in itself, in my view the most appropriate candidate to consider is the investigation described above. This is particularly so in light of the purpose of the information, as each report is drafted in the context of and with specific reference to the investigation.
 
26. The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). An expansive approach must be taken to applying both of those terms (RTÉ, paragraphs 17-19). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (paragraph 20, emphasis added). 
 
27. In light of the case law and guidance outlined above, as a statutory investigation by a local authority following a complaint, I consider that the investigation is a measure within the meaning of paragraph (c). I also consider that the investigation is an activity. 
 
 
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
 
28. To meet the definition, the measure or activity must affect or be likely to affect the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) or designed to protect the environment (Redmond at paragraph 57). A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond at paragraph 63). 
 
29. The Council’s investigation of the complaint was for the purpose of establishing whether the wall in question is a dangerous structure, within the meaning of section 1 of the Local Government (Sanitary Services) Act 1964. If the Council were to conclude that the wall is a dangerous structure, the Council could decide to exercise its discretionary powers under section 3 of that Act. Those powers include requiring a property owner to carry out works to prevent the structure from being dangerous or carrying out such works itself. Such works may include the demolition of the structure. 
 
30. In my view, there is a real and substantial possibility that any such statutory investigation by the Council of an alleged dangerous structure will affect the state of the land. If the Council concludes that the structure is dangerous and that works need to be carried out on the land to remedy the danger, such works will clearly affect the state of the land. The Council relies on the fact that, in this case, it concluded that the structure was not dangerous and so no works were required. However, once the measure or activity (i.e. the investigation) commenced, there arose a real and substantial possibility that the measure or activity will affect the state of the land. The actual outcome of the measure or activity is irrelevant. In this respect, I note the analysis of Hogan J. in Minch at paragraph 40 of his judgment.
 
31. Even if one examines the investigation in light of its actual conclusion that the structure is not dangerous and so no works are required, that conclusion of itself affects the state of the land by maintaining the status quo. Put another way, the basic purpose of a local authority’s investigation under the 1964 Act is to assess whether the state of the land must change or must remain the same. There is a real and substantial possibility that any action taken or not taken as a result of that investigation will affect the state of the land, one way or another. 
 
32. In light of this, my view is that the Council’s decision-making on the question of whether a structure is dangerous is environmental decision-making, as that term is used in recital 1 of the AIE Directive. As a result, access to information on such an investigation is consistent with the purpose, set out in that recital, of contributing to more effective participation by the public in environmental decision-making. Accordingly, I am satisfied that the investigation conducted by the Council is likely to affect the environment, specifically the state of the land. 
 
 
Whether the information is on the measure or activity
 
33. Where the relevant measure or activity has the requisite environmental effect, one must consider whether the requested information is “on” that measure or activity within the meaning of article 3(1) of the AIE Regulations. Information is “on” a measure or activity if it is about, relates to or concerns the measure or activity in question. (Henney, paragraphs 37-44, referred to in Redmond at 99, ESB at 36-45 and RTÉ at paragraph 52). As “any information … on” a measure affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment (Redmond at paragraphs 57 and 59). However, consideration of whether information is “on” the measure does require examination of the content of the information (ESB, paragraph 50).
 
34. In this case, the reports were produced as part of the investigation, so the reports amount to information ‘on’ that measure or activity. 
 
35. Accordingly, the information is environmental information, within the meaning of paragraph (c) of the definition in Article 3(1) of the AIE Regulations. In light of this finding, it is not necessary for me to consider whether the information also falls within other paragraphs of the definition.
 
 

Decision

 
36. Having carried out a review under article 12(5) of the AIE Regulations, I find that the information is environmental information, within the meaning of paragraph (c) of the definition. Accordingly, I annul the Council’s decision. 
 
37. I require the Council to notify the appellant of a new decision on whether it will provide access to all of the information falling within the scope of the request, within the statutory timeframe provided under article 7 of the AIE Regulations.  If it decides to refuse access it should give reasons grounded in the AIE Regulations.
 
 

Appeal to the High Court

 
38. 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