13 October 2015
Thank you for inviting me to speak to your Association on the subject of the Access to Information on the Environment Regulations. This evening I would like to discuss the development of Ireland’s AIE regime. I will highlight the unique aspects of AIE, and outline briefly the legal and practical considerations that apply when making an appeal to my Office.
The Access to Information on the Environment regime (referred to as AIE in Ireland) came to sudden prominence this summer following the judgment of the Supreme Court in an appeal by the National Asset Management Agency against a decision of my predecessor. Most media reports struggled to name the legal instrument at the centre of the case – the request was reported to have been made under “freedom of environmental information” law; or by “an instrument known as an EIR”; or under “a system similar to Freedom of Information”. This confusion is indicative of the general lack of awareness of the right of access to environmental information, particularly when compared to the high profile enjoyed by the Freedom of Information regime.
This poses the question – what is the value of the AIE regime to the public, and why might an applicant choose to make a request under AIE?
Under the Regulations, as holder of the Office of Information Commissioner, I am assigned the legally separate role of Commissioner for Environmental Information. As Commissioner for Environmental Information I decide on appeals taken by members of the public who are not satisfied with the outcome of their requests for environmental information.
The AIE regime has its origins in Directive 90/313/EEC on the freedom of access to information on the environment, which was transposed in Ireland by means of statutory instrument in 1993. This European initiative marked a departure from the traditional culture of secrecy by public authorities. However, in practice the 1993 AIE Regulations created a limited ability to access information, and lacked an effective right of appeal.
In 1998, the United Nations Economic Commission for Europe (UNECE) concluded the Aarhus Convention. Article 1 of the Convention establishes the “right of every person of present and future generations to live in an environment adequate to his or her health or well-being”. In order to vindicate this right, the Aarhus convention establishes a system of public environmental rights based on three pillars: access to information; public participation in decision-making; and access to justice. The convention was ratified by the EU in 2005, and by Ireland in 2012.
Directive 2003/4/EC implements first the pillar of the Aarhus Convention – the right of access to environmental information. In Ireland, the Directive is transposed into national law by the Access to Information on the Environment Regulations 2007 to 2014. The Directive’s objective is to ensure that any natural or legal person has a right of access to environmental information held by or for public authorities, without having to state an interest. These central terms - “public authority” and “environmental information” – are defined under the Aarhus Convention, and subsequently in the Irish AIE Regulations.
For the purposes of AIE, there are three categories of public authority:
The term “environmental information” is given a broad definition by the Regulations, and can include information, in any material form, on the elements of the environment and factors affecting the environment, and also on measures and activities affecting or likely to affect the environment.
The Regulations provide that information may be exempt from disclosure in certain circumstances, such as where the information would adversely affect the confidentiality of personal or commercial information or the interests of third parties. Although some of the exemptions are described as mandatory, in fact, the public interest served by disclosure must be considered in every case. If the environmental information requested relates to emissions into the environment there is usually a presumption that the information must be released.
As a starting point, it is useful to identify how AIE differs from FOI.
Unlike the UK, the Irish FOI regime operates as a separate system to the AIE Regulations, so an applicant may be entitled to access identical environmental information under both FOI and AIE.
Although FOI can provide access to a greater range of subject matters, AIE potentially applies to a greater number of public authorities. The FOI Act 2014 takes an expansive position on which public bodies are subject to FOI, however, some public bodies are only partially subject to FOI and others are specifically excluded. For instance, most commercial semi-state bodies are exempt from FOI, but may be subject to AIE.
In a similar manner, where a body is partially subject to FOI, AIE may allow for access to more extensive information. For example, An Garda Síochána is subject to FOI only insofar as it holds administrative records relating to human resources, or finance or procurement matters, but it may be subject to AIE in respect of any of its functions, provided that the information sought is environmental information.
When considering the differences between FOI and AIE, we should consider that FOI legislation is a national initiative, developed by the Oireachtas and the Irish Courts, whereas AIE is derived from European Law and International Law. Therefore, under Article 267 of the Treaty on the Functioning of the European Union, questions of interpretation of the AIE Directive may be referred to the Court of Justice of the European Union for preliminary ruling. Members of the public can also make communications to the Aarhus Convention Compliance Committee concerning the compliance of a party with the Convention. When interpreting the Regulations, I must take account of the Directive and the Aarhus Convention, judgments of the CJEU and Irish Courts, and guidance published by the Department of Environment, Community and Local Government. I may also have regard to the Aarhus Implementation Guide published by the UNECE. Interpretation of the AIE Regulations therefore requires an examination of a broader spectrum of legal sources than FOI.
Some practitioners believe that AIE can create a more vigorous right of access to information than FOI – especially if the information relates to emissions into the environment. This is illustrated in my decision of 21 August 2015, in the case of Friends of the Irish Environment and the Department of Agriculture, Food and the Marine (CEI/13/0001). Here I found that medication administered to farmed fish by introduction into their habitat was an emission into the environment, and as a result, the exemption on the ground of commercial confidentiality could not dislodge the presumption in favour of disclosure.
Despite the perceived advantages of making an application under AIE, the number of requests remains very low. In 2013, Irish Public Authorities processed 373 AIE requests, compared to 19,000 FOI requests in the same year. About 65% of these requests were fully or partially granted at the outset, (which is a lower rate than FOI in the same year), and 35 internal reviews were carried out by public authorities. In 2014, my Office received 18 appeal applications.
It has been the experience of my Office that well-informed applicants have sought to leverage the unique characteristics and extended scope of AIE in order to access information that would otherwise not be available. As a result, my predecessor and I have frequently been called upon to clarify matters of threshold jurisdiction, which I will now briefly outline.
The definition of “environmental information” is designed to encompass a broad spectrum of information. Significantly, environmental information includes information on measures and activities affecting or likely to affect the elements of the environment. As a matter for interpretation, what is a measure or activity likely to affect the elements of the environment poses some difficulty. It is hard to imagine an activity that would not incidentally affect the elements of the environment in some way – after all everything printed on paper has had an adverse effect on a tree. I do not believe however that the purpose of the AIE Directive was to create a system of access to information to rival FOI in scope.
This brings us to the concept of the Minimal Connection test as derived from the 2003 ECJ judgment in the Glawischnig case (C-316/01). The information at issue in that case related to labelling requirements on genetically modified organisms. The Court held that information on the labelling of the products was not environmental information given that the purpose of the controls was not to protect the environment but to provide consumer information in labelling and advertising. The Court held that AIE does not create a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors. Although the Glawischnig case predates the current AIE Directive; nevertheless, it lays down an important principle: AIE does not create an unlimited right to information.
My predecessor applied this principle in the Irish context in the decision of Mr. Gavin Sheridan and the Central Bank of Ireland(CEI/11/0001). This concerned whether the Bank was justified in refusing access to information relating to mileage claims on the ground that the information concerned was not environmental information within the meaning of the Regulations
On request, the bank provided access to information on modes of transport, distances and dates. The question was whether unreleased information relating to the mileage allowance claims was environmental information.
Commissioner O’Reilly found that information on an activity must, at a minimum, reflect the link to the environmental impact of the activity; it is not sufficient for information simply to be related to the activity. To put it another way, there must be a sufficient connection between the information concerned and an aspect of the activity that has an effect on the environmental elements and factors.
With some reservation, it was accepted that official travel by car is an activity within the definition. However, the remaining items of information, including destination, motor expenses, and mileage amounts, did not have a sufficient connection with the environmental impact of the activity of travel by car to meet the definition of “environmental information” under the AIE Regulations. The Commissioner found in the circumstances that the Bank’s decision was justified.
A High Court judgment on the definition of environmental information is expected shortly, which should bring further clarity to the Minimum Connection test. The appeal arises from my decision in the case of Mr Stephen Minch and the Department of Communications, Energy and Natural Resources (CEI/13/0006). In that case, I considered the question of whether the Department was justified in refusing access to a report relating to the cost implications of various policy options for next-generation broadband implementation. I found that the report did not constitute environmental information under the Regulations, as it was a high level strategy document setting targets for delivery, and had only a minimal connection to the elements of the environment, or to factors affecting the environment. On appeal of this decision, the High Court has been asked to define the boundaries of AIE, and I will consider the pending judgment carefully in this regard.
Another matter of threshold jurisdiction is whether a body is a “public authority” subject to the Regulations. There is no definitive list of bodies subject to AIE. The Aarhus Convention includes three types of public authorities, essentially to account for decentralised public functions. It remains a challenge to apply these three categories in real world situations.
The Court of Justice of the European Union in its 2013 Fish Legal judgment (C‑279/12) provided guidance to member states on the definition of public authority. In short, the CJEU described the powers that would be vested in a public body captured by the second limb of the definition, and also described the type of control that would apply to public authorities covered by the third limb of the definition.
In June of this year, the Supreme Court delivered its judgment in the case of NAMA and the Commissioner for Environmental Information. The Court found that NAMA is a public authority for the purposes of the AIE Regulations, but for different reasons than those relied upon by my Office in reaching the same conclusion. The Court found that NAMA qualified as a public authority under the second category of the public authority definition, as a legal person performing public administrative functions.
In determining that NAMA was captured by the public authority definition, the Court had the benefit of the Fish Legal judgment, which had not been available to my predecessor at the time of her decision. In light of the Fish Legal judgment, the Supreme Court was satisfied that NAMA is indeed a public authority exercising public administrative functions on the basis that, although it is obliged to act commercially, it is vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
The Court also endorsed a purposive approach to interpreting the AIE Regulations. Judge O’Donnell explained that, ininterpreting the Regulations, it is not sufficient to have regard to national law and, in particular, the normal principles of statutory interpretation in Irish law. The Regulations must be understood as implementing the provisions of Directive 2003/4/EC (and indirectly the Aarhus Convention) and, as a matter of constitutional law, ought not to go further, but not fall short of, the terms of the Directive. In interpreting the Regulations, therefore, it is necessary to consider exactly what the Directive does and means, which may also mean interpreting the provisions of the Aarhus Convention.
Interestingly, the Court indicated that, if it had not had the benefit of the Fish Legal judgment, it would have considered it necessary to refer a question to the Court of Justice as to whether a body such as NAMA was a public body for the purpose of the Directive which exercised public administrative functions. Thus, the NAMA case illustrates just how complex threshold jurisdictional questions can be under the AIE Regulations.
I now wish to address the practical and procedural aspects of making an AIE request.
Any natural or legal person is entitled to make an AIE request. In Ireland, AIE requests must be made in writing and must state that the request is made under the AIE Regulations. Requests can be made by electronic means, including by email and social media. Public authorities must make a decision on a request no later than two months from the date it was made. The Regulations provide for an internal review by the public authority if a request is refused in the first instance, following which, an appeal may be made to my Office.
Public authorities are obliged to assist applicants in making a valid request. Section 12(7) of the FOI Act 2014 provides that an FOI body may advise a requester that records may be accessed under the AIE Regulations instead of under the FOI Act. However, there is no automatic default mechanism for a request to be dealt with by means of another suitable enactment, and applicants would be obliged to make a new request.
Appeals to my office are conducted on the basis of written submissions from parties, and, where necessary, a review of the withheld records.
Investigators assess the legal and factual issues of a case, and make recommendations to me. It is not the practice of my Office to exchange submissions between parties, although parties will be notified of material issues arising for consideration. The Regulations also provide that I may deem a request to be withdrawn where a public authority makes information available to the applicant before a formal appeal decision is made.
In my decision of 24 July 2015 in the case of Marcus Dancey and An Bord Pleanála (CEI/14/0001), I addressed the extent of my powers under the AIE Regulations. Article 5 of the Regulations includes general obligations on public authorities to inform the public of their rights, and specifies data-quality obligations that apply to environmental information. However, these general obligations cannot be the subject of an appeal to my Office.
I consider it important that applicants act reasonably and in good faith in exercising their AIE rights, having regard to the limited resources of public authorities. Applicants should state their requests as clearly as possible, and should liaise with Public Authorities where necessary to refine their requests.
Under Article 6 of the Regulations a request must set out the environmental information sought in terms that are as specific as possible. I recently applied this provision in circumstances where the EPA had gone to considerable effort to provide information to an individual. Despite this assistance, an unreasonably imprecise AIE request was subsequently made. In the circumstances, I found that the EPA was justified in deciding that the request was not valid.
As some of you may be aware, my Office has been criticised for failing to carry out its functions in a timely manner.
Until very recently, the OCEI had not received any specific funding allocation from the State and instead had to rely entirely on the resources that could be made available from the Office of the Information Commissioner - This has led to significant time delays in processing appeals.
I am pleased to report that the past year has seen productive engagement between my Office, the Department of Environment Community and Local Government, and the Department of Public Expenditure and Reform to resolve this issue. In June 2015, two full time Investigators were appointed to the OCEI, and progress has been made on addressing the existing backlog of cases. Since July, I have published nine decisions, which are available on the ocei.ie website.
In the case of Friends of the Irish Environment and the Department of Agriculture, Food and the Marine (CEI/14/0007), I addressed the question of the whether the Department was justified in refusing the appellant’s request for access to preliminary reports and related documentation regarding storm damage to fish farms at Gearhies, Bantry Bay, on 1 February 2014. The records at issue related to the investigation into the loss of approximately 230,000 farmed salmon. The Department's overall examination and deliberative process with respect to the matter was ongoing at the time of the review. The Department claimed that the requested information should be refused on the basis that it concerned material in the course of completion and also internal communications under Articles 9(2)(c) and (d) of the AIE Regulations.
In my decision, I did not accept that the connection between the requested information and an ongoing, seemingly indefinite, deliberative process provided an adequate basis for refusal under Article 9(2)(c) of the Regulations. Having regard to the nature and contents of the requested reports, I found that they did not comprise material in the course of completion or unfinished documents for the purposes of Article 9(2)(c). In any event, having regard to the purpose of the AIE regime as reflected in the first Recital to the Directive, I found that the public interest served by disclosure outweighed any identifiable interest served by refusal.
In the case of Marine Terminals Limited and Dublin City Council (CEI/14/0013) - The appellant sought to access the Council’s planning enforcement files, including details of individuals who had made planning complaints concerning the appellant itself.
The appellant argued that because the complaints related to emissions of noise into the environment, the presumption in favour of access applied. Applying the test established by the General Court of the CJEU in Stichting Greenpeace Nederland-v-Pesticide Action Network Europe(T-545/11), I found that the information sought did not constitute information on emissions, because the information sought did not relate to emissions into the environment in a sufficiently direct manner.
Having found that the emissions presumption did not apply to the information, I examined the exemptions under Articles 8(a)(i) and (ii) and found that, in the circumstances, release of planning complaints would adversely affect the interests and the confidentiality of personal information of the individuals involved.
In the case of Wind noise Info and Wexford County Council (CEI/14/0017) an appeal was made to my office by an anonymous online organisation, following a decision by Wexford County Council that a request made on Twitter was not valid.
The Council argued that the request did not meet the requirements of Article 6 of the Regulations, as it did not disclose the name and address of a legal or natural person.
I my decision, I applied the interpretive approach to the Regulations set out by the Supreme Court in the NAMA judgment. By adopting a purposive interpretation of Directive 2003/4 and the Aarhus Convention, and applying Article 11(5)(c) of the Regulations, I found that I have jurisdiction to review questions of what constitutes a valid request.
Having clarified the issue of my jurisdiction, I went on to assess the formal requirements of requests under Article 6 of the Regulations. I was satisfied that an electronic correspondence address, such as a Twitter account or an email address, is sufficient for the purpose of making a request.
I found that to make a valid request, an applicant must provide sufficient detail of their name to give anyone reading a request a reasonable indication of their identity. In this case, I was not satisfied that the particular applicant’s Twitter account disclosed the name of a natural or legal person.
I also reaffirmed the practice of my Office that unincorporated associations may make requests where the details of a representative natural person are provided.
This appeal concerned a request for geographic details of an option agreement between Coillte and a commercial third party for the lease of lands.
Having examined the contents of the information, I was satisfied that it met the definition of environmental information as it included details of measures and activities likely to affect the elements of the environment.
Coillte argued that exemptions provided for by Articles 8 and 9 of the Regulations applied.
I found that Article 8(a)(iv) did not apply because the information did not contain any details of the confidential proceedings of Coillte. In this context, I gave the word “proceedings” its ordinary meaning, to refer to processes applied by Coillte in the course of its activities.
I found that refusal to provide access to the information was not justified under Article 9(1)(c) because it was not reasonable to say that disclosure would have adversely affected commercial or industrial confidentiality in circumstances where Coillte’s commercial partner was in the process of making the same information available to the public.
I found that Coillte could not rely on the exemption relating to material in the course of completion under Article 9(2)(c), as the agreement in question was fully concluded, notwithstanding the fact that the ultimate commercial goals of the scheme were incomplete. In this context, I noted that although environmental information may appear to be misleading, this does not justify a refusal to provide access. It is open to a public authority, when releasing information which it believes may be misleading to provide explanatory information to help recipients of the information to understand its limitations and thereby avoid being misled.
Finally, I held that the exemption under Article 9(2)(d) concerning the internal communications of public authorities did not apply, because the content of the information did not include or relate to internal communications by Coillte. In my decision, I referred to the Department of the Environment, Community and Local Government Guidelines which state that the internal communications exemption “does not usually apply to factual materials even when they are still in preliminary or draft form..... Moreover, once particular information has been disclosed by the public authority to a third party, it cannot be claimed to be an internal communication."
I believe that these recent decisions, which interpret the AIE Regulations in line with CJEU and Irish judgments, bring further clarity to the operation of the AIE framework.
As an Office, we are committed to the goal of dealing with appeals in a timely manner, and I acknowledge that there is still some way to go before we meet this objective. We are keenly aware that environmental information has a short shelf-life, and we hope to improve our responsiveness and refine our practices in 2016. Nonetheless, I acknowledge, as the Courts have done, that this is a complex and evolving area, and most cases involve detailed legal and factual disputes that cannot be resolved simply.
In conclusion, although a robust system of access to environmental information has been developed in Ireland, it remains an underappreciated facility. FOI and AIE occupy the same space in law, and this causes inevitable confusion on the part of applicants, public authorities, and the media. A more integrated approach to requests for information is needed to meet the objectives of the Aarhus Convention, and to ensure that the Public get timely access to environmental information.