Case number: CEI/17/0042

Whether, in light of the definition of environmental information in article 3 and the provisions of articles 8(b), 9(2)(d) and 10 of the AIE Regulations, the Department should be required to release information submitted to Cabinet  

30 April 2019

 

Background

 
On 13 July 2017 the appellant submitted an AIE request to the Department seeking “access to all records submitted to the Government by Ministers which concern Ireland’s greenhouse gas emissions” and said “the scope of this request covers 2011 to date”. 
 
On 18 July 2017 the Department asked the appellant to “indicate in a less general manner the records sought” and offered to provide “advice and assistance to that end”.  The appellant explained that the request was for “all documents considered by the Cabinet at Cabinet meetings (i.e. meetings of the Government) in relation to greenhouse gas emissions from 2011 to date.” 
 
The Department extended the time for processing the request and issued a decision on 11 September 2017 which said:
 
“Forty records have been identified.  Having reviewed them, I have decided they should not be released.  All of the documents are Memoranda for Government.  Many have accompanying or appended documents or reports.  Some of the accompanying documents or records are already in the public domain, as listed in the schedule.  The Department can provide copies of these accompanying documents [which numbered 19] should you wish”.  
 
Apart from offering to provide access to those 19 published documents, the Department refused to provide access to the remaining information on the grounds of articles 8(a)(iv), 8(b) and 9(2)(d) of the AIE Regulations.  It added that “while your request concerns information on emissions into the environment, the grounds relied upon are such that it is permissible to refuse a request in respect of such information”.  As article 10(1) provides that “notwithstanding articles 8 and 9 (1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment”, the Department appears to have been referring to article 9(2)(d). 
 
On 13 September 2017 the appellant requested an internal review, saying “you have not identified the public interest factors favouring release of information.  This is surprising given the importance of climate change”. 
 
When the appellant did not receive a decision by 12 October 2017, it appealed to my Office.   When notified of the appeal and asked for copies of its decision-making records, the Department said: 
 
“Due to an oversight within the Department the internal review was never completed.  The Department regrets this error and has taken steps to ensure it does not re-occur”.  
 
No investigation was undertaken while my Office awaited the judgment of the High Court in a related judicial review case: Right to Know CLG -v- An Taoiseach & anor [2018] IEHC 372) (An Taoiseach).  When judgment was delivered on 1 June 2018, my Office’s investigation began.  My investigator asked the Department to consider the judgment in An Taoiseach and provide a statement of its position within two weeks.  The Department explained that it would require eight weeks rather than two.  My investigator reluctantly agreed, in the hope that a revised statement of position would narrow, or at least clarify, the issues.  In the event, despite being granted the extra time which it had sought, the Department failed to respond by the agreed date, which was 12 October 2018.  After unsuccessfully pressing the Department after that date for a response, my investigator informed it on 31 October 2018 that this review would proceed on the following day, with or without the Department’s statement of position.  On the following day the Department provided the requested statement of position to both my Office and the appellant.  
 
While the Department referred to this statement of position as a “decision”, it should be noted that it was not a decision made under article 11 of the AIE Regulations because the time for making such a decision had long passed.  It was no longer a question of what information the Department might “refuse” to release and it was now a matter of what information, if any, I should require it to release.   
 
This Department’s revised position dropped its earlier reliance on article 8(a)(iv) and this appeared to be in response to the An Taoiseach judgment.  The Department provided internet links to 21 published documents.  These consisted of the 19 documents which the Department had offered to the appellant in the original decision and two additional documents.  It also released certain factual information from memos that were over five years old, while continuing to withhold all of the information in memos that were less than five years old.  
 
In carrying out my review I had regard to the submissions made by the appellant and the Department.  I also 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); the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’); and the relevant jurisprudence of the courts.
 
The Department’s position
 
The Department’s revised schedule listed 40 records.  Many of the records include annexes, appendices or attachments, and many of those could reasonably be regarded as stand-alone documents in their own right.  Viewed in that light, this case involves well over 40 records.  
 
The Department submitted both general and information-specific arguments to justify withholding information. It summarised its general arguments in the following statements: 
 
  • “In general, it is considered that Cabinet discussions do not come within the definition of environmental information prescribed in the [AIE] Regulations.”

 

  • “Cabinet discussions, consisting as they do of the views of members of the Government, as opposed to factual information, do not fall within the scope of the definition of environmental information”. 

 

  • ·“The judgment in Attorney General v Hamilton [which I took to mean the judgment in Attorney General v Hamilton (No. 1) [1993] 2 IR 250] made it clear that the protection afforded by article 28 of the Constitution in relation to Cabinet discussions is to facilitate “full, free and frank discussions between Members of the Government prior to the making of decisions”.  This is very different to the ‘measures… policies, legislation, plans, programmes’ in the definition of environmental information which clearly refer to the outcome rather than the process of decision making”.
 
The Department presented three information-specific arguments in support of its position. 
 
The first was an argument that the withheld information is not environmental information within the scope of the request.  In its revised schedule of records, in the column headed “basis for refusal”, the Department wrote “much of the material is outside the scope of the request” for 36 of the records.  It simply said “out of scope” for a further three records.    Ordinarily, I would not expect to see a record listed in a schedule of records if it was regarded as entirely out of scope.  I concluded that the first decision-maker regarded these records as being within scope but the second decision maker disagreed. 
 
The Department submitted that, if I identify withheld environmental information, I should not require its release on account of articles 8(b) and 9(2)(d). 
 
Article 8(b) provides that a public authority shall not make available environmental information in accordance with article 7 where disclosure of the information, to the extent that it would involve the disclosure of the discussions at one or more meetings of the Government, is prohibited by article 28 of the Constitution. 
 
Article 9(2)(d) provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure.
 
The Department submitted that the memos in question are the internal communications of public authorities and the outcome of a public interest test under article 10(3) would determine whether their contents should be released or not.  Article 10(3) requires a public authority to weigh the public interest served by disclosure against the interest served by refusal.  The Department’s position is that the public interest served by disclosure does not outweigh the interest served by refusal.  The factors which it identified as favouring release may be summarised as follows:
 
  • The aims of the AIE Directive.

 

  • The need for openness and transparency about how the Government does its work, so that its decisions can be explained and justified to the public.

 

  • The release of Cabinet discussions about environmental information could shed light on the factors taken into account by the Government when making decision. 
 
In relation to the withheld information in records 1 – 14, the Department also listed the date of creation of those records as an additional factor favouring release.  All of them were five years old when the Department issued its revised position.
 
The Department also identified “factors against release” in relation to information in each of the 40 records individually.  These may be summarised as follows:
 
  • The AIE Regulations permit the refusal of access to environmental information where it comprises the internal communications of a public authority.

 

  • Article 28.4.3 of the Constitution protects the confidentiality of discussions at meetings of the Government.

 

  • The judgment in Attorney General v. Hamilton “made clear that the protection afforded by article 28.4.3 is to facilitate full, free and frank discussions between members of the Government prior to the making of decisions”.  [It should be noted that the judgment in fact pre-dated the insertion of article 28.4.3 into the Constitution].

 

  • The release of the withheld information would not add significantly to the substantial amount of information that is already in the public domain (including replies to parliamentary questions and press releases) to show the Government’s views on Ireland’s greenhouse gases emissions. 
 
The appellant’s position
The appellant contested all of the arguments advanced in the Department’s statement of position. It argued that the requested information “is clearly environmental information irrespective of whether it concerns wider discussions or cabinet discussions”.  It argued that nothing in Attorney General v. Hamilton supports a conclusion that the request does not concern environmental information.  
 
The appellant submitted that it was “not clear if the information stated to be outside of scope has been excluded on the basis that it is not environmental information, but if it has, then this narrow definition of the scope of the request is incorrect” and the excluded information “must be considered as part of the request”.
 
In relation to article 8(b), the appellant submitted that the records at issue are not records of Cabinet discussions, adding that the latter would record statements made by individual attendees at meetings of Government, i.e. information that it had not requested.  
 
The appellant submitted that the request was for records submitted to government and not for “communications”.  It added that the Department had not identified how the withholding of each record or part of a record would undermine the interest served by article 9(2)(d). 
 
With regard to the public interest, the appellant submitted that arguments based on ‘Cabinet discussions’, article 28.4.3 of the Constitution and the judgment in Attorney General v. Hamilton are “by and large irrelevant” because its request had not sought records of Cabinet discussions.   It argued that “climate change is one of the defining issues of our time and a very strong weight should be given to the public interest in granting access to this type of information”.  It also argued that the specific content of each record should be considered. 
 
In relation to information already in the public domain, the appellant submitted that there is nothing in the AIE legislation “which imposes a limit on the amount of information that needs to be published so that the public interest is satisfied so that the publication of any further information would be contrary to the public interest”.  It said that “this factor is totally misconceived and wrong”. 
 

Scope of Review

This case required me to: 
 
  • Consider whether the requested information falls within a class of information that cannot constitute environmental information, and

 

  • If not, identify all relevant withheld environmental information, and 

 

  • If I find relevant withheld environmental information, decide whether in the light of articles 8(b), 9(2)(d) and 10, I should require the release of information.
 
Whether the requested information falls within a class of information that cannot constitute environmental information
 
The Department’s general arguments appeared to amount to a claim that since the withheld information is information on Cabinet discussions it therefore does not come within the definition of environmental information.  It made a similar argument in a recent AIE appeal case, CEI/18/0010 (available at www.ocei.ie/decisions).  In my decision on that case I rejected that argument and said: 
 
“… the Cabinet is obviously free to discuss environmental information and such information could not cease to be environmental information as a result of being so discussed”. 
 
Nothing that the Department said in the current case changed my view.  I was satisfied that the requested information does not contain records of discussions at Cabinet meetings and it is not in a class of information that cannot constitute environmental information. 
 
Identifying relevant withheld environmental information in the records
 
I assessed the Department’s records by following a three-step funnelling approach. 
 
  • I first considered whether all of the records appeared to be within scope on account of containing information which, broadly interpreted, “concerns Ireland’s greenhouse gas emissions”. 

 

  • I then considered whether that “greenhouse gas-related information” is environmental information.  

 

  • Finally I sought to distinguish relevant environmental information that had been released from that which continued to be withheld. 

 

As the request sought records “which concern” Ireland’s greenhouse gas emissions, I considered the meaning of the word “concern”.  I noted that the clarification given by the appellant on 18 July 2017 made it clear that it was not solely seeking ‘information on’ greenhouse gas emissions.  I took the view that information did not have to include the words “greenhouse gas emissions” to come within the scope of the request.  I therefore regarded information concerning climate change and energy efficiency as falling within the scope of the request because those topics are sufficiently related to greenhouse gas emissions.  
 
I examined the contents of the records, including those which the Department had labelled “out of scope” (i.e. records numbered 14, 20 and 23).  I found that all of the records are within scope.  I was surprised to note that record number 20, which the Department described as “Memo for Government – National Climate Policy Position and Heads of Climate Action and Low Carbon Development Bill”, was listed as “out of scope”.  The Department’s original decision maker regarded this record as being within scope and so did I.   
 
In responding to an AIE request a public authority has discretion to release complete documents which contain both environmental information and non-environmental information.  This is the most customer-friendly way to respond to a request since it is far better for an applicant to receive complete documents than to receive redacted documents.  In my role as Commissioner, however, I do not have the same discretion. I am empowered to require public authorities to release only environmental information.  I must therefore distinguish such information from other information. 
 
The appellant argued that “the requested information, i.e. records submitted to the Government by Ministers which concern Ireland’s Greenhouse gas emissions, is clearly environmental information”.  Because records may contain both environmental and non-environmental information, I did not accept that all of the information in relevant records must be environmental information.  I therefore carefully considered the contents of the records.  
 
I considered whether the information that I regarded as “concerning Ireland’s greenhouse gas emissions” is environmental information in light of the definition of “environmental information” provided in article 3(1) of the AIE Regulations and the jurisprudence of the courts on how that definition is to be interpreted. I concluded that it is environmental information because it is information on measures likely to affect elements of the environment or on measures designed to protect those elements. 
 
I also found, however, that much of the information in the same records is not relevant environmental information. Record number 1 is a good example.  The Department described it in its schedule as “Memo for Government 2011 & 2012 Special and Commemorative Stamp Programmes”.  Only a very small proportion of the information in that memo relates to Ireland’s greenhouse gases, and what does relate to such gases only does so indirectly because it concerns renewable energy.  
 
I formed the view that almost all of the relevant environmental information contained in the records has been published or otherwise released to the appellant.  I would characterise the remaining relevant environmental information as primarily consisting of information on specific proposals put to the Cabinet by members of the Cabinet and the pre-meeting written observations of Cabinet colleagues on such proposals.  Accordingly, it was to the Department’s refusal to provide access to this information that I next focussed my attention.
 
Whether refusal to provide access to withheld information is justified on the basis of articles 8(b) or 9(2)(d) having regard to article 10
Article 8(b)
 
Article 8(b) provides that a public authority shall not make available environmental information in accordance with article 7 where disclosure of the information, to the extent that it would involve the disclosure of the discussions at one or more meetings of the Government is prohibited by article 28 of the Constitution. 
 
In the recent AIE appeal case CEI/18/0010, the same Department raised article 8(b) in relation to a single memo for Government.  In my decision on that case I said: 
 
“The memo was completed before being brought to the Cabinet meeting.  Having regard to this fact and to the content and context of the memo, I am satisfied that article 8(b) does not apply in this case.”
 
The current case is somewhat different, as it involves 40 memos for Government dating from 2011 to July 2017.  That raises the possibility that disclosure of any one of those memos could potentially reveal what was said by a Member of the Cabinet at another, earlier Cabinet meeting.  However, as the Department did not notify me of any such information and no such material was evident from my reading of the memos, I discounted that possibility.  I found that article 8(b) does not apply in this case since I had no basis for believing that disclosure would reveal anything said at a Cabinet meeting.
 
Article 9(2)(d)
 
I disagreed with the appellant’s argument that the request was not for “communications”, for the following reasons: 
 
  • The Government is a public authority, as the High Court confirmed in An Taoiseach at paras 79 and 97. 
  • The request sought records submitted to Government by members of the Government. 
  • To ‘submit’ information is to ‘communicate’ it.  
  • I was therefore satisfied that the request sought information that was communicated internally within a public authority. 
 
The Aarhus Guide (which is not a binding authority) provides (at pages 84-85) that a public authority may refuse to disclose material concerning internal communications but only when national law or customary practice exempts such material and only after considering the public interest in disclosure.  I understand that it is customary practice in Irish Government Departments is to place a high value on protecting the confidentiality of intra-Cabinet communications.  The Aarhus Guide says that the internal communication exception does not usually apply to factual information. The word “usually” suggests that the context of each case must be taken into account.  In this case, the context involves the confidentiality of intra Cabinet communications in circumstances where a large amount of relevant information has already been published.  
 
The Aarhus Guide also says that “once particular information has been shared with a third party it cannot be claimed to be an ‘internal communication’.  I had no reason to believe that the information at issue had been shared with any third party.  
 
I was satisfied that all of the withheld information constitutes the internal communications of the Cabinet.  Accordingly I decided that, subject to article 10(3), the withholding of that information could be justified under article 9(2)(d) in order to maintain the confidentiality of intra- Cabinet communications.
  
I proceeded to consider article 10(3) of the AIE Regulations.  This provides that a public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. 
 
I considered the current request on an individual basis, on its own merits.  I considered that, even with a restrictive interpretation, the withheld information is all clearly part of the internal communications of the Cabinet and therefore article 9(2)(d) could justify it being withheld, subject to further article 10 considerations.  
 
I considered the weight I should give to the interest served by refusal under article 9(2)(d) in this case.  In my decision on case CEI/18/0010, which also involved a Cabinet memo, I said that:
 
“While this memo does not reveal what was said at a meeting of Government (which had not yet been held when it was prepared) the information in the memo is not unrelated to later oral discussions at such a meeting.  The Cabinet Handbook explains (at para.2.4) that:
 
‘Proposals requiring a Government decision should be the subject of a memorandum from the responsible Minister.  At Government, Ministers normally make a short oral presentation, based on the memorandum’.   
 
I take this to mean that by reading the memo I have received a strong indication of the kind of information that the sponsor of the memo would be likely to have presented orally to his colleagues at the relevant Cabinet meeting: i.e. what was proposed, why it was proposed and how Cabinet colleagues had responded to the invitation for observations on the proposal.  Accordingly, I take the view that while disclosure of the memo could not reveal exactly what was said at the relevant Cabinet meeting, it would reveal the views held by Members of Cabinet when the oral discussions commenced.  I therefore accept that the information in the memo is closely related to the later Cabinet discussions.  I recognise the very significant public interest in maintaining the confidentiality of such oral discussions at meetings of the Cabinet, due to the desirability of Cabinet Members feeling able to exchange their views in a full, free and frank manner during the process of preparing the memo, before the oral discussion at a Cabinet meeting where collective decisions are to be made.  I regard information on the opening views of Cabinet Members, before any discussion at Cabinet took place, as lying on the more sensitive end of the scale of ‘internal communications’ and I regard factual background information as lying at the less sensitive end of that scale”.   
 
Having considered the matter afresh in this case, my view was unchanged. I considered the relative sensitivity of the internal communications now at issue and concluded that information held by a Department which would show the views of Cabinet members on matters that were to be discussed at Cabinet meetings lies at the more sensitive end of the scale of records of internal communications likely to be held by any Irish public authority.
 
I next considered the weight to assign to the public interest in disclosure of the information at issue.  The appellant argued that since “climate change is one of the defining issues of our time” a very strong weight should be given to the public interest in granting access to this type of information.  It also argued that the specific content of each record should be considered.  I agree that the specific content of each record should be considered, although I believe it must be considered in light of the full context, which includes taking account of information already made available to the appellant.  The Department argued that the release of the information at issue would not add significantly to the information that is already in the public domain. The appellant countered that “there is nothing in the AIE legislation which imposes a limit on the amount of information that needs to be published so that the public interest is satisfied so that the publication of any further information would be contrary to the public interest”.  In my view, it is not a question of whether the disclosure of further information would be contrary to the public interest.  The test requires the weighing of two legitimate interests.  The question was whether the interest served by disclosure of the withheld information, in all of the circumstances (which must include acknowledgment of the large amount of information that is already in the public domain) outweighs the interest served by refusal, which, in this case, is the interest served by maintaining the confidentiality of the Cabinet’s internal communications.  
 
In the light of the appellant’s argument that a very significant weight should be given to the public interest in granting access to information which would show the response of the Irish Government to the challenge of climate change, I considered how disclosure would actually contribute to that aim.  I formed the view that disclosure of the withheld information would not add significantly to the information already available to the public.  I therefore concluded that I should assign a modest weighting to the public interest served by disclosure of the withheld information in these circumstances.  
 
On weighing the public interest in disclosure against the interest served by maintaining the confidentiality of the Cabinet’s internal communications, I was not satisfied that the former outweighed the latter.
 
For completeness, I considered article 10(5) of the AIE Regulations, 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 concluded that article 9(2)(d) applies to all of the withheld information.    
 

Decision

I am satisfied that most of the information within the scope of the request has been made available to the appellant. I am also satisfied that article 9(2)(d) applies to the withheld information because it constitutes the internal communications of the Cabinet.  I find that the public interest in disclosure of the withheld information does not outweigh the interest served by protecting the confidentiality of the Cabinet’s internal communications.  I therefore affirm the Department’s decision and do not require it to release any additional environmental information.    
 
Comment on the Department’s handling of this case 
 
I have already addressed the Department’s failure to issue an internal review decision and its long delay in responding to my Office’s request for a statement of position.  
 
The appellant complained that the Department had not considered each record individually.  The Department had separately set out, in a 109 page appendix to its statement of position, the ‘interests served by refusal’ and the ‘interests served by disclosure’ for each of the 40 listed records involved.  The appellant complained about the amount of repetition in this appendix and there was indeed a great deal of repetition.   The repetition arose because the Department held the same view on many records.  I accept that the Department acted in good faith in attempting to provide a comprehensive, record by record, justification of its position in the context of the finding of the High Court in An Taoiseach, at para. 84, that the requisite weighing exercise must be embarked upon before refusal of environmental information can be justified.  However, its voluminous statement of position was unhelpful.  
 
The appellant complained that the Department’s statement of position appeared to have been “drafted in advance as it provided identical reasons for refusing access” and it was “virtually identical to a previous decision issued by the Department”.  It complained that the Department had applied “formulaic pre-drafted reasons verbatim”, not considered each document on an individual basis and applied a “cut and paste” approach.  I accept that public authorities may legitimately use time-saving means including ‘cut and paste’ shortcuts when drafting decisions, while recognising that this can lead to errors.  The most important thing, however, is that decision-makers must have first considered each request individually before coming to a decision, as required by article 10(3).  They should then take care to ensure that any cutting and pasting used in the recording of the decision does not appear to undermine the legitimacy of the decision by giving the impression that the particular request was not considered on its own merits.
 

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