Case number: CEI/18/0009

1. Whether daa’s part-refusal of an AIE request which sought access to the information in a contract was justified because the withheld information is not environmental information within the meaning of article 3 of the AIE Regulations, and 
2. Whether daa’s part-refusal was justified by article 9(1)(c) of the AIE Regulations on commercial confidentiality grounds
 

04 October 2018


Background


In April 2016, following a public tender process in which the appellant had engaged, daa awarded a contract to develop and operate an aviation fuel storage facility at Dublin Airport to  CLH.  On 5 August 2016, the appellant submitted an AIE request to daa seeking access to a copy of the contract. Daa refused the request and its decision was appealed to my Office (case CEI/16/0043).  I made a decision on that case on 27 September 2017 and it is available on my website www.ocei.ie.  I found that daa had not correctly applied the definition of environmental information and I annulled its decision on that point.  I stated my expectation that daa would make a new decision on the request in accordance with the AIE Regulations. The appellant appealed to me again on 22 March 2018.  


Timeline


The AIE Regulations set out strict time limits for the making of decisions on AIE requests.  Unless a public authority validly extends time, it must give notice of its decision on the request as soon as possible but no later than one month from the date of receipt of the request.  If the requester does not receive a decision within that timeframe they become entitled to request a review by the public authority. In this case, daa was entitled to appeal my decision in case CEI/16/0043 to the High Court anytime up to two months from receiving my decision, which means that it could have initiated such an appeal on or before 26 November 2017.  I would not expect a public authority to make a new decision on a matter arising from my decision in circumstances where it had either decided to appeal my decision to the High Court or was still considering such a course of action while that option was still open.  In this case, daa, by its own account, contacted the appellant on 6 November 2017 to clarify the extent of the information it required and was told on 21 November 2017 by the appellant that its requirement was unchanged from the AIE request in which it asked for a copy of the entire contract.  On that basis, daa regarded 21 November 2017 as the starting date for reprocessing the request. The appellant accepted this and so do I.   


As that was the case, and since daa did not extend time as per article 7(2)(b), the appellant was entitled to receive a decision before, or at the latest on, 20 December 2017.  As it did not receive a decision within that timeframe, the AIE Regulations deemed daa to have refused the request on 20 December 2017.  As a result, on 20 December 2017 the appellant acquired the right to request a review by daa which would last up to and including 19 January 2018.  


On 3 January 2018 the appellant asked daa for an update but made no reference to a deemed refusal or any request for an internal review.  These circumstances were similar to those which arose in a recent case, CEI/18/0007.   My decision on that case is available on my website www.ocei.ie.  In short, I found that where a deemed refusal arises by virtue of the statutory period for a decision having expired, the applicant’s contacting the public authority can amount to an exercise of the right to a review. 


Following the reasoning in that case (which I see no reason to set out in detail here), I regard the appellant’s request of 3 January 2018 as a request for review made under article 11 of the AIE Regulations.  Accordingly, the appellant acquired the right to expect to receive a decision on its request before, or at the latest on, 2 February 2018.  As it did not receive such a decision, it acquired the right to appeal to my Office on 2 February 2018 and that right would run up to, and include, 1 March 2018. 


The appellant appealed to my Office on 22 March, meaning that its appeal was 21 days outside of the standard timeframe.  In light of daa’a failure to notify the appellant of a decision on time and the fact that daa did not inform the appellant of its right to request a review or to appeal to my Office, I decided to exercise the power given to me by article 12(4)(b) of the AIE Regulations: I extended the time for the making of an appeal in this case up to 22 March 2018.  I therefore regard the appeal as validly made.  


It follows from the above timeline and analysis that daa’s response to this request, at both initial and internal review stages, was a deemed refusal.  As these refusals arose as a matter of law, they are not displaced by the decision which daa issued on 22 February 2018.  It is regrettable that these deemed refusals appear to have arisen because daa did not feel obliged to process the request in response to my decision on case CEI/16/0043 in accordance with the timeframe set out in the AIE Regulations.  Daa submitted that it was not possible to respond to the request within one month.  If that was the case, daa ought to have either extended the time as per the AIE Regulations or given a decision within one month refusing the request on the ground that it was manifestly unreasonable.  


The decision which daa notified to the appellant on 22 February 2018 part-granted the request.  Daa provided the appellant with a heavily redacted copy of the contract and said that the redacted information was withheld because it was either not environmental information or because it contained sensitive information of a financial and commercial nature which was refused on the basis of article 9(1)(c) of the AIE Regulations.  Daa explained that disclosure of the redacted information could reasonably be expected to result in a material financial loss to daa and/or CLH, and it could also prejudice the conduct or outcome of daa’s contractual or other negotiations in respect of the Fuel Farm Project. 
Under article 12(5) of the AIE Regulations, my role was to: review daa’s refusal; to annul, vary or affirm its decision; and, if appropriate, require daa to make environmental information available to the appellant.


In conducting my review I took account of the submissions made by the appellant, daa, and CLH.  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) and the relevant jurisprudence of the courts.


Scope of Review


In essence, this review required me to address two questions: whether the withheld information is environmental information and, if any of it is environmental information, whether refusal to provide access to that environmental information is justified by article 9(1)(c) on commercial confidentiality grounds. 
In a submission to my Office, daa argued that it is prohibited by article 8(a)(i) and (ii) of the AIE Regulations from disclosing information in the contract that had been provided by CLH.  Those sub-articles provide that:
A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information— 
(a) would adversely affect—
(i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law, 
(ii) the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information,
Daa’s argument was that these sub-articles applied because disclosure would adversely affect CLH’s interests by disclosing proposals of a commercial nature submitted to daa by CLH, without CLH’s consent.  Also, those proposals included information on CLH key staff members.  However, daa submitted that argument before my investigator informed it that the appellant had excluded both personal information and information supplied by CLH from the scope of its appeal.  In light of those exclusions, I am satisfied that sub-articles 8(a)(i) and (ii) do not fall for consideration in my review.
The earlier appeal case focussed on whether the contract contained environmental information.  My decision on that case afforded daa an opportunity to consider the matter afresh.  The current appeal likewise provided me with an opportunity to consider afresh how to approach a case like this.  I decided that the best approach would be to first ask whether the contract as a whole constitutes environmental information and to only ask if any of the specific information within the contract is environmental information, on its own merits, if the answer to the first question is no. 
I was mindful that daa released some of the information in the contract to the appellant.  Also, the appellant, in the course of this review, agreed to exclude from the scope of its appeal both personal information and all information that was taken from CLH’s tender and inserted into the contract, e.g. the value of the contract, the financial model, tender proposal, price and all information on CLH and its shareholders.  For clarity, I decided to refer to the information in the contract other than that which was released by daa or excluded from scope by the appellant as “the remaining information”. 
I decided that if I identify environmental information in the contract I must then consider whether refusal to make that information available to the appellant was justified on commercial confidentiality grounds by article 9(1)(c).  


Whether the information in the contract as a whole constitutes environmental information


I considered whether the contract as a whole constitutes environmental information within the meaning of any of the six categories of environmental information that are set out in the definition provided in article 3 of the AIE Regulations.   I considered in particular whether the contract itself might be a measure affecting or likely to affect the elements and factors referred to in the definition of environmental information in article 3. That definition provides that the expression ‘measures’ includes administrative measures, policies, legislation, plans, programmes, and environmental agreements, and it is clear that the words following the word “includes” do not set out an exhaustive list. 


The parties’ positions


My investigator invited the parties to comment on whether all of the information in the contract might be environmental information on the basis that, if the contract is itself a measure affecting or likely to affect the elements and factors referred to in the definition, all of the information in the contract is, by definition, ‘information on’ that measure.  


Daa submitted that it does not agree that the entire contract constitutes environmental information and referred to its previous correspondence with my Office, including in particular section 1 of its letter dated 19 July 2018.  What follows is a summary of what that section said: 


1. The entire contract should not be regarded as environmental information because only some of its clauses constitute environmental information.
2. Any finding that it should be so regarded would mean that all contracts entered into by a public body containing any environmental clauses whatsoever would always be disclosed in their entirety.  This would amount to a general and unlimited right of access, contrary to what has been held by the Court of Justice of the European Union (and it referred to the rulings of that Court in the Glawischnig and Ville de Lyon cases).
3. Daa was advised to review the contract to determine whether the clauses were or were not environmental information. 
4. The entire contract simply does not fall under any of the 6 categories of environmental information set out in the legislation. To be environmental information must fall within one or more of those categories. 
CLH’s submission did not engage with the question of whether all of the information in the contract might be environmental information on the basis that, if the contract is a measure affecting or likely to affect the elements and factors referred to in the definition, all of the information in the contract is, by definition, ‘information on’ that measure.  
The appellant made a sizeable submission.  I will not recite it here in full, but I have considered it in full.  The following is my summary of its main points:
1. Part (c) of the definition of environmental information provides a non-exhaustive list of examples of measures.  The definition is to be interpreted broadly and measures includes ‘steps taken to ensure that something happens’.  One such step is the signing of a contract to build a fuel farm.
2. There is no requirement for a contract to be an ‘environmental contract’ for it be a measure.
3. The key question is whether the contract, as a measure, is capable of affecting the environment. The contract at issue was clearly capable of having such effects, for example, to land and landscape.
4. In Minch, the Court of Appeal found that it is not necessary to establish whether a measure was likely to be put into effect. The fuel farm contract had progressed to the stage where it was, by itself, capable of affecting the environment in the same way as a building plan. 
5. As the contract is a measure capable of affecting the environment, it is environmental information and (in the applicant’s view) qualifies for release. 


Analysis


Daa’s submission did not properly engage with the questions of whether the contract is a measure and if it is, whether it was capable of affecting the environment.  These questions are entirely different from questions which ask whether a contract contains clauses which, of themselves, might constitute environmental information.  Daa said that it was advised [by my earlier decision] to review the contract to determine whether the clauses were or were not environmental information. That is correct.  It was also invited by my investigator in the current case to address the question of whether all of the information in the contract might be environmental information on the basis that, if the contract is itself a measure affecting or likely to affect the elements and factors referred to in the definition, all of the information in the contract is, by definition, ‘information on’ that measure.  Daa chose not to address that matter.  I am satisfied, however, that it had been given the opportunity to be heard on this point.
CLH did not address the point put to it either.  Instead its submission addressed different questions, such as whether the contract is information on a “measure” or “activity” affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) of the definition of “environmental information” and whether it is information on cost-benefit and other economic analyses and assumptions used within the framework of measures and activities.  I am satisfied that CLH was given an opportunity to be heard on this point.  
The appellant engaged with the invitation put to it by my investigator.  I find myself broadly in agreement with its submission, although it is incorrect to suggest that once information is found to be environmental information it necessarily “qualifies for release”, as access may be limited due to exceptions.   However, I am satisfied in this case that when the public authority took the step of entering into a contractual agreement, that amounted to it adopting a ‘measure’ within the meaning of the AIE Regulations.  


The next question is whether that measure ‘affected or was likely to affect’ elements and factors referred to in the definition of environmental information.  Since the contract was executed and a fuel farm was constructed, the answer must be that the contract affected the landscape through the building of the fuel farm.  It might have had other effects and it might or might not be likely to have further effects.  However, it is sufficient to find that the contract affected landscape and I am satisfied that it did.  Accordingly I am satisfied that the contract was a ‘measure affecting or likely to affect’ an element referred to in the definition of environmental information.  
The next question is whether the ‘information in’ the contract is ‘information on’ the contract. The answer must be that it is: all of the information within the contract is integral to it by definition.  
Finding: I concluded that all of the information in the contract is environmental information within the meaning set out in category (c) of the definition of environmental information in the AIE Regulations.  As that was my finding, I did not need to consider whether the withheld information, on its own merits, clause by clause, constitutes environmental information.  



Whether refusal to provide access to the remaining information was justified by article 9(1)(c)    


Article 9(1)(c) of the AIE Regulations provides that:
“a public authority may refuse to make environmental information available where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest”.
It is a discretionary provision and it is subject to article 10, which, inter alia, requires the weighing of the public interest served by disclosure against the interest served by refusal. Accordingly, for refusal to provide access to environmental information to be justified on this ground, a decision-maker would need, before considering article 10, to be satisfied that:
1. The information at issue is commercially or industrially confidential.
2. The confidentiality of that information is provided for in national or Community law to protect a legitimate economic interest.
3. Disclosure would adversely affect that confidentiality.
I am satisfied that the information has the necessary quality of commercial or industrial confidentiality.  


As for whether that confidentiality is provided for in law, daa submitted that its employees have a statutory duty of confidentiality under section 36 of the Air Navigation and Transport (Amendment) Act 1998 which prohibits them from disclosing confidential information.  I do not regard this prohibition as relevant because it only applies to unauthorised disclosure and would not, therefore, prohibit the disclosure of information by daa in accordance with a statutory provision. 


Daa submitted that the contract contains a confidentiality clause which prohibits daa from disclosing further information from the contract.  It is open to the parties to legal contracts in Ireland to bind one another to confidentiality commitments.  If they do, Irish contract law will recognise the validity and enforceability of those commitments provided that they do not purport to override national or Community legal obligations.  For example, a public authority is not free to “contract out of” its obligations under AIE law.  I am satisfied that daa’s interests include the legitimate economic interest of conducting its business in the most cost-effective manner possible and that this interest may be served by the use of confidentiality clauses in commercial contracts.  
The contract in this case includes a confidentiality clause which obliges the parties to treat all information which relates to the provisions of the contract as confidential. The clause does not purport to prevent either party from disclosing information where required to do so by law.  I am satisfied from this that the confidentiality of all of the information in the contract is provided for under Irish Contract Law to protect both parties’ legitimate economic interests.  
I am also satisfied that disclosure would adversely affect that confidentiality. Accordingly, I concluded that article 9(1)(c) applies to the remaining information.  


Consideration of article 10


Article 10(1) provides that, notwithstanding article 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment.  The contract contains information on measures to prevent and detect leaks but it does not contain information on emissions into the environment.  Accordingly, I concluded that article 10(1) does not apply to the remaining information.
I satisfied myself that articles 10(2) and 10(6) are not relevant to this case.  I have already commented on the deemed refusals that arose in this case, so I find that article 10(7) applies. 


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.  I am satisfied that I have interpreted article 9(1)(c) on a restrictive basis in regarding it as applying to information that is protected by a confidentiality clause in commercial contract and I considered the public interest below under article 10(3).
Article 10(3) provides that a public authority shall consider each request on an individual basis and I am satisfied that I have done so.  Articles 10(3) also provides that a public authority shall weigh the public interest served by disclosure against the interest served by refusal.  Daa submitted that it enters into high-value bespoke contracts on a regular basis and it would undermine daa’s ability to conduct effective negotiations in an effective manner if such arrangements could be disclosed to a third party “as matter of course”.  No matter what my final decision on this case is, it could not mean that commercial contracts must be disclosed as a matter of course.  Neither could it mean that there is a general and unlimited right of access to information, even environmental information. However, I understand that daa is concerned about how it, as a commercial entity, might be seen by potential partners in the future if disclosure is required in this case.  I understand that position and accept that it is a legitimate concern.  However, every public authority, even those which operate in commercial environments, must conduct their business in the full knowledge that they are not private entities and they are always subject to AIE obligations.  


Daa further submitted that some information should not be disclosed for airport safety and security reasons.  However, it neither identified such information nor presented any argument as to how the AIE Regulations might permit refusal on this ground. This argument was made in the context of daa commenting on the weight that I should give to the interest served by refusal under article 9(1)(c). Daa did not provide me with sufficient information to enable me to be satisfied that I should give weight to the interest served by refusal on this account.
In summary, daa maintained that disclosure would seriously affect its interests, given the unique nature of the contract and daa’s role as an airport operator.
CLH submitted that the relevant public interest factors which fall to be considered in this case are: 
(i) The public interest in the activities of public authorities being open to scrutiny by the public; 
(ii) The public interest in maintaining the confidentiality of information relating to the commercial activities of public authorities, so that such public authorities are not disadvantaged in their commercial activities; and 
(iii) The public interest in maintaining the confidentiality of information relating to the commercial activities of private entities. 
CLH submitted that daa took all reasonable steps to satisfy any public interests which could exist in relation to the release of the environmental information in the contract. It submitted that to require daa to provide access to the redacted information would constitute an erroneous application of the AIE Regulations and would make it impossible for a public authority to maintain the confidentiality of any financial information of third parties. It would severely prejudice daa’s ability to enter into commercial relationships with third parties in future as third parties may be unwilling to take the risk that their confidential contractual and commercial information might be released to the public. It would clearly not be in the public interest if daa was unable to enter into commercial relationships with third parties.  CLH submitted that the balance of the public interest falls in favour of refusing access to the redacted information. 


The appellant submitted that the public interest in favour of disclosure is as follows:
Daa is a commercial semi-state company which owns and operates Dublin Airport. Dublin Airport is one of the most important economic assets in the country.  The two runways at Dublin Airport facilitate up to 740 flights per day. There is an obvious public interest in the design, build and operation of the fuel farm which the daa describes as having six times the capacity of the original facility with three new aviation fuel tanks capable of storing 15 million litres of fuel in total. The fuel farm is likely to have a significant effect on both the local environment and the local population for a number of years. There is a strong public interest in the population being as fully informed as possible about the farm and how it will operate.
It is well established that the fact that some members of the public might be interested in accessing certain information does not mean that there is a public interest in disclosure of that information.  Nonetheless, in some circumstances, it could be that the existence of evidence showing that significant numbers of the public are concerned about a particular proposal or issue could add weight to any assessment of the public interest in disclosure of information about the matter.  I am conscious of the fact that, in this case, the development in question has been granted planning permission, and that the planning process would put considerable information about the facility and its operations into the public domain.   I accept that there is a public interest in the disclosure of the remaining information since I have found that it is environmental information.  However, the provisions of article 9(1)(c) itself reflects a public interest in the protection of the commercially confidential information in certain circumstances.  I accept that there is a legitimate public interest in persons being able to conduct commercial transactions with public authorities without suffering adverse effects. 
I had regard to the nature of the remaining information in the contract and information about the facility that has already been released in the response to the AIE request, in the course of the planning process or otherwise.  I considered the public interest in ensuring that public authorities manage their functions effectively and in greater public awareness of and participation in environmental matters.  Having considered the matter and all of the circumstances, I was not satisfied that the public interest in disclosure in this case outweighed the interest served by refusal on the ground of article 9(1)(c).  
I considered article 10(5), which provides that nothing in article 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 9 relates, may be separated from such information.  I considered that article 9(1)(c) applied to all of the remaining information and concluded that there was no scope for the part-release of information. 


Decision


Having reviewed daa’s part-refusal of the AIE request, I find that all of the information in the contract is environmental information.  Accordingly, I find that its part-refusal on the ground that information is not environmental information was not justified.  I identified the information at issue as consisting of all of the information in the contract except for the information which had been either already released by daa or excluded from the scope of the appeal.  I considered whether refusal to grant access to that information was justified on the ground of article 9(1)(c) and, having weighed the public interest under article 10(3), I find that it was.  Accordingly, I hereby affirm daa’s part-refusal decision, while varying the basis for its decision to rely solely on article 9(1)(c). 


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