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Case number: CEI/17/0046

Whether or not the Council’s refusal of an AIE request relating to information held by or for the Council on a cease and desist notice in connection with protests against construction of a bridge across the River Nore was justified on the basis that the request was not a request for environmental information

 

05 October 2018

 


Background


The information the subject of this appeal, relates to the Kilkenny Central Access Scheme (KCAS). This scheme provided for the construction of a new bridge across the River Nore in the city of Kilkenny. Protestors prevented access to the site area during the summer of 2014. On the 18 July 2014 the Council distributed a cease and desist notice (the notice) with the aim of removing a protest adjacent to the Greensbridge, KCAS site works. 
On 3 November 2017 the appellant made his AIE request seeking all records, documents and emails held by or for the Council relating to the notice. This was to include documents relating to the decision making process on the notice and to documents which may exist relevant to the decision by the Council not to apply to the High Court for an injunction to restrain protestors from continuing to block access to the site. In his request the appellant stated that the notice itself “relates to our local environment in many different ways”. 


On 22 November 2017 the Council in its decision advised the appellant “that this information is not considered to be environmental information as set out in article 3(1)(a), (b), (c),(d),(e) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014”. 
On the 24 November 2017 the appellant made a request for internal review and argued that the request was fundamentally related to the environment.
On 4 December 2017 the Council replied to the request for internal review stating that, having sought advice on this matter, the appellant was not entitled to request an internal review. The original AIE request was refused on the grounds that the information sought was not considered to be environmental information. Later that same day, the appellant appealed to my Office. 


I am satisfied that the appellant was entitled to an internal review under the AIE Regulations and a deemed refusal arose as a result of the failure to give an internal review decision. The Council should have considered whether its original decision was correct and in accordance with article 11(2) of the AIE Regulations, affirmed, varied or annulled it. Under its obligations set out in article 11(4) of the AIE Regulations, it should have specified to the appellant the reasons for its internal review decision and informed him of his right of appeal to my Office. 
Under article 12(5) of the AIE Regulations, my role is firstly to review the Council’s internal review decision and to affirm, annul or vary it and then to decide whether it would now 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).  


What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
What Information is held? 
The Council stated that it did not hold any environmental information on file in relation to this request and that the only information held was the notice itself and the Council’s legal advice was that that document did not constitute environmental information. It stated that it did a search for any information relating to the notice at the time of request. It was put to the Council that given the passage of time between the issuing of the notice in July 2014 and the AIE request which was made in November 2017, information may have existed in 2014 that no longer exists. The Council confirmed that it was satisfied with the adequacy of its search for all relevant records in relation to the request. 
The appellant argued that the Council would have gotten legal advice and that would have led to information on this existing.  In a submission he stated that legal advice regarding this matter is crucial to understanding the Council’s understanding of the situation as it presented itself to it in the summer of 2014. My Office put this point to the Council. It responded with a letter from its Solicitors detailing what information they hold on its behalf under the scope of the appellant’s request.


Scope of the Review


There are 33 separate documents amounting to a total of 91 pages on the file held by the Solicitors for the Council.  I therefore consider that my review is concerned with whether the Council is justified in refusing to disclose any environmental information held on that file that falls within the scope of the request as described above.  


Analysis and findings


If there is no environmental information contained in the file then it would not be necessary or appropriate for me to consider whether legal professional privilege applies, so I will deal with this first. 
Whether the information submitted contains Environmental Information
Article 3(1) 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); 
Having examined the file, I am satisfied that it contains environmental information as defined by article 3(1)(c) of the definition. It contains information on the construction of a bridge and therefore is information on a measure or activity likely to affect the landscape as in article 3(1)(a), therefore, I am satisfied that this appeal relates to a request for environmental information.  


 
Whether Legal Professional Privilege Applies


The Council submitted that as the records are covered by legal professional privilege pursuant to the AIE Regulations, they are exempt from being disclosed to any other party. Article 8 (a)(iv) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect, without prejudice to paragraph (b), the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts). My Office has recognised in previous cases that article 8(a)(iv) may apply where information is protected by legal professional privilege. I am satisfied that the requirements of article 8(a)((iv) are met in this case.


I consider that legal professional privilege is the type of claim for confidentiality that could be protected by law as envisaged in Article 8(a)(iv).  If I  find that information meets the test for legal professional privilege under the common law rule (incorporated into the section 31(1)(a) exemption in the Freedom of Information Act 2014),  the Council is entitled to rely on article 8(a)(iv) in relation to it subject to consideration of the public interest. 
 Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
· confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
· confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.
The Council submitted that the information relates to confidential communications with its lawyers where legal action was being considered to restrain protestors from obstructing works. It submitted that legal advice privilege applies. 
The privilege ‘belongs’ to the client and there is no requirement for litigation to be in train or anticipated. The concept of "once privileged always privileged" applies where privilege is based on advice privilege and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.
My examination of their content confirms that the records at issue consist of legal advice sought and received by the Council from its professional legal advisers together with associated information.. While it could be argued that not every piece of information is, in itself, a record of requesting or receiving legal advice or opinion, all of the pieces form part of a continuum of correspondence that resulted from the original request for advice, I am satisfied that the information in full attracts legal advice privilege. 


In this regard I consider the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522] to apply:
"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."


Finding


I find that the information concerns proceedings of the Council, that disclosure would adversely affect the confidentiality of those proceedings and that the information is protected by legal advice privilege. Thus I find that article 8(a)(iv) applies. 


The Public Interest


It is now necessary for me to consider the public interest in accordance with article 10(3). I recognise that there is a public interest in the upholding of legal professional privilege. It is regarded as a cornerstone of the administration of justice.  In Martin & Doorley v. Legal Aid Board [2007] 2 IEHC 76, for example, the High Court held that “legal professional privilege exists and has been elevated beyond a mere rule of evidence to ‘a fundamental condition on which the administration of justice as a whole rests’”.   Accordingly, there would have to be exceptional public interest factors at play, in favour of disclosure, before legal professional privilege could be set aside. 


In considering the public interest served by disclosure under AIE, it is important to have regard to the purpose of the AIE regime as reflected in Recital (1) of the Preamble to the Directive: "Increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment." Thus, the AIE regime recognises a very strong public interest in maximising openness in relation to environmental matters so that an informed public can participate more effectively in environmental decision-making. 
 
The appellant pointed to a number of arguments that, in his view, add weight to the public interest in release. In summary, he argued that there is a public interest in:
· Understanding measures taken by the Council in a project that ran significantly over budget. 
· Information on any other factors that may have led to the stream works in the project taking two summers as opposed to one summer as originally planned. 
· Information on KCAS as a controversial project actively opposed by a number of groups including civic bodies and residents.
· Understanding why the Council did not seek the threatened Injunction, obtaining information on the decision-making of the Council and whether this was consistent with what it was communicating publicly at the time. 
· Ensuring that all environmental standards on the project would be of the highest calibre. In the appellant’s view, the Council failed in its duty as the responsible public authority and client of the KCAS contractor. 
· Allegations that significant pressure was placed on Councillors who had concerns over the project.
· The adverse environmental impacts of the construction on the River Nore and the fact that no “environmental enforcement” has taken place.
· The request may concern documents relating to threatened actions by the Council would have had an affect on emissions of significant plumes of limestone aggregate dust in the River Nore.
I have had the opportunity to examine the information and I am satisfied that the public interest in granting access to it does not outweigh the public interest that is served by the protection of legal advice privilege. It seems to me that the appellant believes that the material concerned with the cease and desist notice might contain information of a wide nature. Without disclosing the contents of the information, I can say that it does not provide answers to the many questions and concerns of the appellant and does not contain any information on emissions into the environment. I am not convinced that the disclosure of the environmental information in the file from this particular aspect of the KCAS project would lead to a greater public awareness or understanding of environmental matters, such that legal professional privilege should be set aside. Neither do I see that disclosure of the particular information involving exchanges with lawyers for the Council would to a significant degree serve the public interest in openness and accountability as to how the Council carried outs its functions. On the other hand, I consider that there is a very strong public interest in allowing legal professional privilege to endure so as to facilitate a public authority having frank exchanges with its legal advisers which, in turn, can contribute to sound decision making on behalf of the public. 
I considered whether any environmental information contained in the file could be separated, in accordance with article 10(5) of the AIE Regulations, from information to which article 8(a)(iv) applies. I concluded that such separation is not practicable since all the information held is covered by legal professional privilege and article 8(a)(iv) applies to all of it.


Decision


Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Council’s decision but vary the reasons for refusal. I find that refusal was justified under article 8(a)(iv) of the AIE Regulations and that the public interest in disclosure does not outweigh the interest served by non-disclosure.  Accordingly, I do not require the Council to make the environmental information available to the appellant.


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