Case number: CEI/17/0019
29 May 2018
On 20 February 2017, the appellant submitted an AIE request to TII as follows:
This request is for copies of all contracts entered into between TII (or its predecessor the NRA) and the operator of the M1 motorway (including tolls) between Gormanstown and Ballymascanlan.
TII gave notice of its decision on the request on 16 March 2017. This decision indicated that TII held one contract meeting the description of the request and it was made with Celtic Roads Group. It said that:
Due to the contract containing information of a commercially sensitive nature, the decision-maker had decided to refuse the request in accordance with the provisions of articles 8(a)(iv) and 9(1) of the AIE Regulations.
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); or (b) to the extent that it would involve the disclosure of discussions at one or more meetings of the Government, is prohibited by Article 28 of the Constitution.
Article 9(1) provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—
(a) international relations, national defence or public security,
(b) the course of justice (including criminal inquiries and disciplinary inquiries),
(c) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest, or
(d) intellectual property rights.
If there is particular information that you require in connection with the contract for the operation of the M1 Dundalk Western Bypass PPP scheme which does not fall within the provisions of articles 8 and 9 of the Regulations, please contact the undersigned and we will endeavour to facilitate your request.
On 22 March 2017, the appellant requested an internal review of that decision and complained that inadequate reasons had been given and partial release had not been considered. In later correspondence, it argued that “a mere statement that an exception applies is not a reason, but rather a conclusion. It said that:
It is simply absurd to ask us to narrow the scope of our request to that which falls outside the scope of the exemptions when in fact it is TII’s obligation to conduct this analysis and provide access to all of the information requested that can be released under the AIE Regulations.
TII gave notice of its internal review decision on 21 April 2017, saying that
I find that it is in the public interest not to provide the information requested and therefore, I find that the decision maker’s decision on the information request was correctly made pursuant to articles 8(a)(iv) and 9(1) of the AIE Regulations.
TII also dismissed arguments put forward by the appellant which complained about a lack of reasons being given for the refusal, arguing, in effect, that sufficient reasons had been given. The appellant appealed to my Office on 4 May 2017.
Under article 12(5) of the AIE Regulations, my role is to review TII’s internal review decision and to annul, vary or affirm that decision, and decide whether it would be appropriate for me to require TII to make environmental information available to the appellant.
In conducting my review I took account of the submissions made by the appellant and by TII. 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).
TII’s internal review decision included the following:
TII submitted that the appellant did not avail of “this offer” and added that “in view of the confidential nature of the contract documentation and its extensive volume, the offer to facilitate a more focussed information request was reasonable and proportionate”.
In a submission to my Office TII added the following.
In response to question put by my investigator, TII explained that:
The appellant said that TII’s refusal decision relied on articles 8(a)(iv) and/or 9(1) of the AIE Regulations but lacked adequate reasons to show how this decision had been made.
The appellant submitted that TII gave no indication as to how article 8(a)(iv) was engaged, did not identify any particular “proceedings” and did not show how the confidentiality of such proceedings is provided by law, and how that would be adversely affected by disclosure.
In relation to article 9((1), the appellant submitted that TII had not identified the exact provision(s) in article 9(1) on which it was relying, leaving the appellant to presume that it was subarticle 9(1)(c)), which deals with commercial confidentiality.
It added that TII “seems not to be aware that there is no general exception for confidential information under the AIE Regulations and that a public authority cannot agree with a third party to refuse to grant access to information under the AIE Regulations whether the information is confidential, commercially sensitive or otherwise”.
The appellant submitted that this exception is engaged where disclosure would adversely affect commercial or industrial confidentiality and argued that the word “would” indicates a high degree of certainty that prejudice will result from release. It submitted that “the public authority has to demonstrate more than a mere possibility of prejudice and cannot rely on hypothetical, exaggerated or improbable grounds for maintaining this exception”.
The appellant submitted that:
Crucially, [TII] has not acknowledged the fact that no operator has ever been awarded more than one motorway PPP contract and that the contractor in this case is a SPV formed for the purpose of operating the M1 and will not bid for future contracts. It also fails to consider the age of the contract which was executed more than 13 years ago and that there are currently no motorway projects out for tender. In any event the characteristics of the M1 PPP scheme are so unique that any prejudice flowing from disclosure is simply too remote since the information contained in the contract is unlikely to be of any use outside of the context of the M1 scheme.
The appellant submitted that TII “seems to be unaware of its obligations [under article 10(5)] to consider partial release”. It complained that TII instead put the onus of the appellant to identify information that would not invoke articles 8(a)(iv) or 9(1).
Article 10(3) weighing the public interest
The appellant argued that TII conducted an incorrect public interest test. The appellant referred to the judgment of the Court of Justice of the European Union in National Roads Authority v. Revenue Commissioners C-344/15 and said that the CJEU, in that case, considered whether toll road operators in Ireland were in competition. It said that the Court first observed that the mere presence of private operators in a market without account being taken of the overall objective evidence cannot demonstrate the existence of competition. It said that the Court found that there is no actual or potential competition in the operation of toll roads in Ireland. Different toll schemes do not compete and there is no possibility of a new road being constructed in competition with an existing scheme.
The appellant argued that, since as a matter of law toll operators are not in competition, there can be no competitors that might be unfairly advantaged by disclosure of commercially sensitive information. It submitted that:
The mere existence of the harm envisaged is not relevant to the public interest. Rather it is the degree or likelihood of harm or both which should be considered. In other words, the worse the prejudice and the more likely it is the more weight should be given to those factors favouring refusal.
The appellant submitted that given the age and duration of the contract, the distinctiveness of the subject matter and the lack of competition in this market, the prejudice to interests protected by article 9(1)(c) are low in degree and remote in possibility and little weight should be given to public interest factors favouring refusal.
It also complained that TII did not consider any public interest factors favouring release since it considers that the public would be “indifferent” to the requested information. The appellant submitted that I should adopt similar reasoning that which I adopted in my capacity as Information Commissioner in case 150062 (available on the Office of the Information Commissioner’s website www.oic.ie) where the public interest in transparency around large public contracts and how valuable state assets are managed was given significant weight favouring disclosure unless there are exceptional countervailing circumstances. It noted that the High Court affirmed my approach to the public interest in that case, finding that it was not irrational and that it was within the margin of discretion available to me.
The appellant submitted that there is an additional public interest factor at play here:
The scope of the request
The request covered all environmental information contained in all parts of all contracts entered into by TII/NRA and the motorway operator. TII’s position is “the information requested is properly to be understood as the Project Agreement and the schedules to that agreement”.
TII confirmed that it is a party to a number of ancillary agreements that would permit TII, in certain circumstances, to ‘step in’ to various contracts that the PPP Company is a party to in relation to the motorway. TII said that the information in such agreements “is set out in identical terms within the schedules” to the Project Agreement. This amounts to TII giving an assurance that the full scope of the information requested is captured by the Project Agreement and its schedules. I accept that assurance.
Information captured by the request that was already in the public domain
TII says that many published documents were incorporated by reference into the Project Agreement. It follows that the AIE request captured all of the environmental information contained in such documents. Notwithstanding this, TII refused the request in full.
I considered whether such documents might contain environmental information. One such document is the “Specification for Road Works” document that was published by the National Roads Authority. Clearly the construction of roads is an activity that affects elements of the environment. Information detailing the specification for the construction of a road would clearly be information on an activity affecting elements of the environment, and would constitute environmental information on that basis. I am therefore satisfied that there was environmental information in at least one published document that was incorporated into the contract but not provided by TII to the appellant in response to its AIE request.
As published information is already in the public domain, refusal to provide access to it could not be justified by articles 8(a)(iv) or 9(1) unless the very fact that such documents were incorporated into the contract justified non-disclosure under those articles. TII does not argue that articles 8(a)(iv) or 9(1) apply to published information that was incorporated into the Project Agreement, but those were the only reasons which it gave for its complete refusal of the request.
In correspondence with my Office TII said “other documentation, mostly of a technical nature, brought in to the Project Agreement by reference, does not need to be considered because it is already published”. This view is mistaken. Environmental information cannot be disregarded by a public authority when processing an AIE request simply because it is already in the public domain. A public authority may provide access to such information by providing the applicant with internet links, where appropriate, that would bring the applicant directly and specifically to the relevant information, document by document (but not by merely providing one link to, say, “our publications” without specifying the particular documents that are relevant).
Information captured by the request that was not in the public domain
TII does not dispute that it holds information of this type and that it contains environmental information. TII refused access to this information on the ground of articles 8(a)(iv) and 9(1).
In the decisions which TII gave to the appellant and in its later submission to my Office, TII at no stage explained how it had decided that article 8(a)(iv) justified refusal in this instance. It did not identify any particular “proceedings”, nor did it identify how the confidentiality of such proceedings is protected by law. When challenged by the appellant on this insufficiency of reasons given, TII simply said (in an email dated 24 March 2017) that “the decision notified to you explained that your request could not be acceded to due to the contract containing information of a commercially sensitive nature”, as if that was the test under article 8(a)(iv). That is not the test.
TII’s internal review decision referred to future PPP tender competitions, leading one to suspect that the “proceedings” that TII might have had in mind are those involved in assessing future PPP tenders. While TII explained why it believed that disclosure would adversely affect both its interests and those of the PPP Company, it did not say how the confidentiality of such proceedings are protected in law. TII did not establish its case in this regard and it is not for me to attempt to make its case for it.
TII referred to confidentiality clauses in the contract. I read that clause and I am satisfied that it shows that each party had an expectation of confidentiality, as a matter of private law. Such private law terms do not override rights of access to environmental information. By its own terms, the contractual obligation of confidentiality is subject to a number of exceptions and these allow the disclosure of confidential information “when required to do so by law”. That would be the case even if the clause did not include such words, as it is well-established that one cannot ‘contract out’ of a public-law obligation.
As TII has not identified any proceedings or shown how the confidentiality of same was protected by law, I am not satisfied that refusal to provide the information at issue was justified on the ground of article 8(a)(iv).
TII also refused the request on the ground of article 9(1). Although that article contains 4 different provisions, TII did not identify which of those provisions justified refusal. The appellant complained about this and said it was left to “presume” that TII was referring to subarticle 9(1)(c). This lack of precision by TII is most unsatisfactory. It should never be the case that an appellant (or later, my Office) is in any doubt about why a request was refused.
Clearly this case does not involve international relations, national defence or public security. On that basis I believe I can rule out subarticle 9(1)(a). Nothing in TII’s decisions or submissions suggests any concern about the course of justice. On that basis, I believe I can rule out subarticle 9(1)(b). In its decisions and submission TII focussed on commercial confidentiality, which suggests that it was relying on subarticle 9(1)(c). However, it also mentioned the PPP Company’s “proprietary” information on a number of occasions, which suggests that it may have also had subarticle 9(1)(d) (which deals with intellectual property rights) in mind. I will take it therefore that TII relied on subarticles 9(1)(c) and (d). It is extraordinary that I am left to decipher a public authority’s position in this manner. Both the appellant and my Office were entitled to a clear and reasoned decision. We did not get this from TII on this occasion.
TII informed my Office that “the requested records contain information of a commercially sensitive nature, access to which would inevitably fall to be refused under the Regulations.” This statement displays a fundamental misunderstanding of the AIE Regulations. There is no “inevitability” that commercially sensitive information will “fall to be refused” under the Regulations. Recognising that certain information is commercially sensitive may be a starting point in a process of consideration, but it is not an end point. Article 9(1)(c) is a discretionary provision which has several formal requirements. Subject to a public interest test, this article may justify refusal of an AIE request where:
I am satisfied that the contract contains information that was intended by the parties to be treated as confidential. Clearly, disclosure of that information would adversely affect its associated confidentiality—by ending it. However, TII has not shown, in either its decisions or in its submissions to my Office, that such confidentiality is provided for in national or Community law to protect a legitimate economic interest. Once again, it is not for me to make TII’s argument for it. TII has not satisfied me that its refusal decision was justified on the ground of subarticle 9(1)(c).
TII did not present any argument as to why refusal would be justified under article 9(1)(d). That ground could, at most, apply to specific information contained in the contract to which the intellectual property rights vested in the PPP Company. But TII did not identify such information. Accordingly I am not satisfied that refusal of this AIE request was justified on the ground of article 9(1)(d).
In its decision TII displayed a puzzling and inappropriate attitude to partial release. It appeared to consider it appropriate to ignore article 10(5), which provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information. Instead of complying with this provision, TII invited the appellant to identify information related to the contract (which the appellant did not have sight of) which would not “fall within” articles 8 and 9. TII, in effect, sought to take its obligation to separate and release such information and place it on the appellant.
I find that TII’s decision to refuse to provide access to the requested information on the ground of articles 8(a)(iv) and 9(1) was not justified. As this is my finding, I do not need to assess the weight of the public interest in disclosure and the interests served by non-disclosure on the grounds of articles 8(a)(iv) and 9(1) and weigh one against the other.
Whether it would be appropriate for me to require TII to make environmental information available to the appellant
It does not necessarily follow that because refusal of an AIE request was not justified for the reason given I should proceed to require a public authority to make information available to an appellant. I would need to be satisfied that the imposition of such a requirement would be appropriate in all of the circumstances. While there is a presumption in favour of the disclosure of environmental information, there is no presumption that information is environmental information. Also, where an interest in favour of the non-disclosure of environmental information is identified, there is no presumption that the public interest in disclosure outweighs that interest. As I said in my decision on case CEI/16/0046 (which is available on my website www.ocei.ie), “I have already found that … refusal of the AIE request was not justified. My review is not an adversarial process. I am concerned now with the entirely separate matter of whether it would be appropriate for me to require [a public authority] to provide access to certain information. In this context I am obliged to have regard to all relevant considerations and these are not confined to matters which were raised by the parties”.
This case is about access to the environmental information in a contract. TII provided my Office with copies of the majority of the documents which formed the contract. TII did not provide five associated schedules but invited my Office to inspect them on TII’s premises if desired. The contract extends to over 68 Clauses and 28 Schedules (including 76 Parts, 70 Annexes, 93 Appendices) and with 393 Drawings. A further 427 documents are referenced in the Schedules; many of these documents are extensive. Additionally, the Design Manual for Roads and Bridges, the Specification for Road Works and the EIRSPAN Manual are brought into the contract by reference and these contain multiple volumes and documents.
TII said that the contract amounted to “many thousands of records”. My investigator asked TII to estimate how long it would take to examine these records in order to identify environmental information and to identity (and consider, following consultation if necessary) affected third-parties. TII responded with an estimate of several months of work by a person solely committed to that task, and added that identified third parties might themselves have received certain information from other third-parties whose interests might also have to be considered.
TII submitted that “ancillary contracts do not contain information on the environment so they would not be in scope”. Since ‘environmental information’ is a technical legal term that cannot be equated with “information on the environment”, I do not accept TII’s assurance on this point. Moreover, if TII regarded information as not being environmental information, it could have refused access to it on that basis while recognising that the question of whether particular information is environmental information or not would be very much in the scope of my review on appeal. TII also gave an assurance that all of the terms of such contracts were fully incorporated in to the Project Agreement.
Some of the records incorporated into the contract are published and therefore publicly available. Access to such documents could have been given to the appellant by providing it with internet links. However, I acknowledge that even doing this, in relation to hundreds of documents, could take one person several days.
I formed the view that fully processing this request would be a large task. Identifying and providing access to published documents captured by it over a number of days would only be the tip of the iceberg. I therefore considered whether the request might be manifestly unreasonable. My investigator invited the appellant to make a submission on this issue and it did so. In what follows I will both summarise the points made by the appellant in italics and address those points.
I would largely agree with that overview, although I would say that there is one category of environmental information that is outside of the scope of the AIE Regulations (and I am referring here to the provisions of articles 4(1)).
If I were to interpret that as meaning that it would always be appropriate for me to require the release of information once I find that the public authority’s refusal was not justified for the reasons given or in the absence of any reason being given, it would greatly simplify my task but it could have seriously harmful consequences. For example, such an approach would lead to me formally requiring the release of information even when it appeared to me that such release would adversely affect national defence or public security, merely because the public authority refused the request for other reasons or refused it for those reasons but missed the deadline for giving notice of its decision. I am satisfied that such an interpretation would not be a correct interpretation. I understand that, when I have decided if whether or not a public authority’s decision on an AIE request was justified for the reasons given or in the absence of any reasoned decision being given in time, my statutory role requires me to consider whether imposing a requirement to release environmental information would be appropriate and in so doing I need to bring my judgement to bear.
Having considered the matter carefully, I am satisfied that, even without taking account of material that is already publicly available and even if TII’s time estimate is over-stated, the task of searching the complete contract for environmental information and fully processing the request in relation to such information (which would be likely to require consultation with third parties who might be affected by disclosure) would be a very large task, going beyond what the AIE scheme requires of public authorities.
Article 9(2) (a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. I regard this AIE request as being manifestly unreasonable for that reason. I have taken account of the appellant’s public interest arguments, but am not persuaded that the public interest in disclosure of the requested information would outweigh the interest served by allowing TII to proceed with its important core work without the burden of fully processing this request. I therefore find that it would not be appropriate for me to require TII to provide access to particular environmental information or to make a fresh decision on this request. I am also satisfied that it would not be appropriate for me to employ my own resources on the same task.
Having reviewed TII’s internal review decision, I find that its refusal was not justified by the reasons given. However, I find that this request was manifestly unreasonable within the meaning of article 9(2)(a) of the AIE Regulations. Under the power given to me by article 12(5), I hereby vary TII’s decision to rely on article 9(2)(a) as the reason justifying refusal. Accordingly, I am not requiring TII to make information available to the appellant or to make a fresh decision.
I note that it is open to the appellant to make a new AIE request focussing on specific environmental information which would avoid the difficulties created by the volume and complexity of the information sought in the current request.
Applicants for environmental information need to take account of the fact that contracts for large projects are likely to be voluminous and complex. For example, the contract at issue in the current case incorporated ten other contracts. Each of those contracts could potentially incorporate multiple other contracts, thereby greatly complicating the processing of the AIE request and consultation with third parties whose interests might be affected by disclosure. Requests for complete copies of such large contracts run the risk of being found to be manifestly unreasonable, not to mention that some of the information that such contracts contain might not be environmental information.
I would encourage public authorities dealing with AIE requests to appreciate that:
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