Chapter 1: The AIE Regime In Ireland

• Introduction
• The purpose and obligations of the AIE regime
• Charges
• The scope of the AIE regime
• What is environmental information?
• What is a public authority?
• Guidance

Introduction

The Access to Information on the Environment (AIE) regime is based on Directive 2003/4/ EC on public access to environmental information. The Directive was adopted by the European Union (EU) in order to give effect to the first pillar of the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the “Aarhus Convention”. Ireland ratified the Convention on 20 June 2012, but the EU has been a Party to the Convention since May 2005.

The Directive has, as its key provision, the establishment of a right of access to environmental information held by public authorities. The Directive has been transposed into Irish law by the European Communities (Access to Information on the Environment) Regulations 2007 to 2011. An unofficial consolidated version of the Regulations is available on the website of the Department of the Environment, Heritage and Local Government (the Department) at http://www.environ.ie/en/AboutUs/AccesstoInformationontheEnvironment/.

The Office of the Commissioner for Environmental Information (OCEI) was established under Article 12 of the AIE Regulations, and it is also considered as relevant to Ireland’s obligations under the access to justice pillar of the Aarhus Convention. I became the Commissioner for Environmental Information, because Article 12(2) assigns this position to the person holding the Office of the Information Commissioner under the FOI Act. My role as Commissioner for Environmental Information, which is additional to and legally independent of the roles I have as Ombudsman and Information Commissioner, is to review decisions of public authorities on appeal by members of the public who are not satisfied with the outcome of their requests for environmental information. My decisions on appeal are final and binding on the affected parties, unless a further appeal is made to the High Court within two months of the decision concerned.

The purpose and obligations of the AIE regime

The ultimate goal of the AIE regime is to contribute to a better environment through more effective public participation in environmental decision-making. To this end, AIE imposes significant obligations on public authorities that are designed to facilitate public access to environmental information. Access to environmental information is also meant to be generally affordable, if not free.

Objectives

The purpose of the AIE regime is 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 decisionmaking and, eventually, to a better environment.” The objectives of the Directive are stated in Article 1 and include setting out “practical arrangements” for the exercise of the right of access and also ensuring that environmental information is “progressively made available and disseminated to the public in order to achieve the widest possible systemic availability”.

Obligations & Expectations

Accordingly, the Regulations impose certain general duties on public authorities in order to facilitate access to environmental information. Public authorities are under a duty to inform the public of their rights and to provide information and guidance on the exercise of those rights. Public authorities must “make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means”. The Regulations, as amended, now require public authorities to “ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable”. In addition, public authorities are required to “maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found”. In line with Article 7(4) of the Directive, a public authority is also required, in the event of an imminent threat to human health or the environment, to “ensure that all information held by or for it, which could enable the public likely to be affected to take measures to prevent or mitigate harm, is disseminated immediately and without delay”.

Thus, the scheme of the AIE regime envisions that the environmental information held by or for public authorities will be systematically organised, managed, catalogued, and at least ready for active dissemination to the public. It is also the expectation that requests for environmental information will generally be granted. Although the Regulations set out certain mandatory and discretionary grounds for refusal, requests for environmental information cannot, in most cases, be refused where the request relates to emissions into the environment. All requests are subject to consideration of the public interest under Article 10(3) of the Regulations. Article 10(4) of the Regulations, in turn, specifies that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest.

Charges

Moreover, under the AIE regime, no upfront fee applies for making a request or for applying for an internal review of a decision to refuse a request. The on-sight examination of the information requested is also free of charge. A public authority may charge a fee when it makes environmental information available, but any such fee must be “reasonable having regard to the Directive”. Where a public authority proposes to charge fees, it is obliged to make a list of the chargeable fees available to the public. There is a right of appeal (internal and external) on the ground that the amount of the fee charged is excessive.

However, as a general rule, a fee of €150 must be charged for making an appeal to my Office. A reduced fee of €50 applies in respect of an appeal to my Office by a medical card holder, a dependant of a medical card holder, or a relevant third party. The Regulations, as amended, now provide that I may waive all or part of the appeal fee where the original decision was untimely.

The scope of the AIE regime

While there are limits to the scope of the AIE regime, it has a broad application by virtue of its wide-ranging definitions of “environmental information” and “public authority”.

What is environmental information?

The definition of “environmental information” in the Directive and in the Regulations covers information “in written, visual, aural, electronic or any other material form on” the following six categories:

• the state of the elements of the environment (e.g., air, water, soil, land, landscape, biological diversity),
• factors affecting or likely to affect the elements of the environment (e.g., energy, noise, radiation, waste, emissions),
• measures (e.g., policies, legislation, plans, programmes, environmental agreements) and activities affecting or likely to affect the elements and factors referred to above as well as measures or activities designed to protect those elements,
• reports on the implementation of environmental legislation,
• cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to above, and
• the state of human health and safety, 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.

What is a public authority?

Unlike FOI legislation, the Regulations do not prescribe a list of individual public authorities that are subject to the AIE regime. Rather, the Regulations broadly define the term “public authority” to mean –

• government or other public administration (including public advisory bodies) at national, regional or local level,
• any natural or legal person performing public administrative functions under national law, including in relation to the environment, and
• any natural or legal person having public administrative responsibilities or functions, or providing public services, relating to the environment under the control of a body or person encompassed by either of the first two categories.

The definition in the Regulations states that it includes certain types of entities. The Regulations, as amended, require the Minister for the Environment, Heritage and Local Government to “ensure that an indicative list of public authorities is publicly available in electronic format”. An indicative list of a general nature is available on the Department’s website. Where there is a dispute as to whether a body is a public authority, the person making the request has a right of appeal to my Office.

Guidance

Guidelines relating to the implementation of the Regulations have been issued by the Minister and are available on the Department’s website. Although public authorities are required to have regard to the guidelines in performing their functions under the Regulations, the guidelines do not purport to be a legal interpretation of the Regulations. Another guide for understanding the AIE regime is The Aarhus Convention: An Implementation Guide [ECE/ CEP/72] (the Aarhus Guide), which is available at www.unece.org/fileadmin/DAM/env/pp/acig.